<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 8, 1999
===============================================================================
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
FRESH FOODS, INC.
(Exact name of registrant as specified in its charter)
North Carolina 56-0945643
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3437 E. Main Street, Claremont, NC 28610
(Address of principal executive offices) (Zip Code)
FRESH FOODS, INC.
NON-EMPLOYEE DIRECTOR STOCK PURCHASE LOAN PLAN
(Full title of the plan)
Mr. James E. Harris
Chief Financial Officer
Fresh Foods, Inc.
3437 E. Main Street
P.O. Box 399
Claremont, NC 28610
Telephone: (704) 459-7626
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy To:
Patrick D. Daugherty, Esq.
McGuire, Woods, Battle & Boothe LLP
Bank of America Corporate Center
100 North Tryon Street, Suite 2900
Charlotte, NC 28202-4011
Telephone: (704) 373-8975
Telecopier: (704) 373-8823
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Title of Proposed Maximum Proposed Maximum
Securities to Amount to be Offering Aggregate Amount of
be Registered Registered Price Per Share Offering Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common
Stock, $1.00 (1) (2) $600,000 $167 (3)
par value
=========================================================================================================================
</TABLE>
(1) Such presently indeterminate number of shares as may be purchased from time
to time pursuant to the Fresh Foods, Inc. Stock Loan Purchase Plan with the
maximum cash amount authorized to be lent thereunder, $600,000.
(2) Dependent on market prices prevailing from time to time.
(3) Computed in accordance with Rule 457(o) under the Securities Act of 1933.
===============================================================================
<PAGE> 2
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Fresh Foods, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents which have been filed
with the Securities and Exchange Commission (the "SEC"):
(i) the Registrant's Annual Report on Form 10-K for its fiscal
year ended February 27, 1998;
(ii) the Registrant's Quarterly Report on Form 10-Q for its fiscal
quarter ended May 22, 1998;
(iii) the Registrant's Quarterly Report on Form 10-Q for its fiscal
quarter ended September 5, 1998;
(iv) the Registrant's Quarterly Report on Form 10-Q for its fiscal
quarter ended December 5,1998;
(v) the Registrant's Current Reports on Form 8-K filed on May 13,
1998, June 24, 1998 and September 11, 1998; and
(vi) the descriptions of the Common Stock and of the Preferred
Stock Purchase Rights (the "Rights") contained in the Registrant's Registration
Statements on Form 8-A filed with the SEC pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any
amendment or report filed by the Registrant for the purpose of updating either
such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all such securities then remaining unsold,
shall be deemed to be incorporated by reference into this Registration
Statement and to be part hereof from the respective dates of filing of such
documents. Any statement contained in a document incorporated or deemed
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document that is also
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
In accordance with the provisions of Section 55-8-57 of the North
Carolina Business Corporation Act (the "Act"), the Registrant has by resolution
of its Board of Directors ("Board") provided that, in addition to the
indemnification of directors and officers otherwise provided by the Act, the
Registrant shall, under certain circumstances, indemnify its directors,
executive officers and certain other designated officers against any and all
liability and litigation expense, including reasonable attorneys' 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 such 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.
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In addition, Sections 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 believed (x) that his
conduct in his official capacity with the corporation was in its best interests
and (y) in all other cases his conduct was at least not opposed to the
corporation's best interests, 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, by a committee thereof or by 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 party because of his capacity as a director 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.
David R. Clark is party to an Employment Agreement with the Registrant
that provides that in the event he is made a party to any threatened or pending
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by the Registrant against him, and
excluding any action by him against the Registrant), by reason of the fact that
he is or was performing services under the Employment Agreement or as an
officer or director of the Registrant or as an officer, director or
representative of any subsidiary of the Registrant or any entity controlled by
or affiliated with the Registrant, then, to the fullest extent permitted by
applicable law, the Registrant shall indemnify Mr. Clark against all expenses,
including reasonable attorneys' fees, judgments, fines and amounts paid in
settlement, as actually and reasonably incurred by Mr. Clark in connection
therewith. Such indemnification shall continue even if Mr. Clark has ceased to
be an employee, officer or director of the Registrant and shall inure to the
benefit of his heirs and estate. The Registrant shall advance to Mr. Clark all
reasonable costs and expenses directly related to the defense of any such
action, suit or proceeding within twenty days after written request by Mr.
Clark to the Registrant upon receipt of an undertaking by Mr. Clark to repay
such amount unless it shall ultimately be determined that Mr. Clark is entitled
to be indemnified by the Registrant against such expenses. The Employment
Agreement also provides that the Registrant will obtain coverage for Mr. Clark
under a directors and officers liability insurance policy upon such reasonable
limits as agreed to by Mr. Clark and the Registrant. The Registrant maintains a
standard policy of directors and officers liability insurance.
Norbert E. Woodhams is party to an Employment Agreement with the
Registrant that provides that the Registrant shall indemnify him and hold him
harmless for all acts or decisions made by him in good faith while performing
services for the Registrant. The Registrant shall pay all expenses, including
attorneys' fees, actually and necessarily incurred by Mr. Woodhams in
connection with the defense of such action, suit or proceeding and in
connection with any related appeal, including the cost of court settlements.
The Employment Agreement also provides that the Registrant shall use its best
efforts to obtain coverage for Mr. Woodhams under any insurance policy now in
force or hereinafter obtained during the term of the Employment Agreement
covering officers and directors of the Registrant against liability or lawsuit.
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<PAGE> 4
ITEM 8. EXHIBITS
See the Exhibit Index immediately preceding the Exhibits to this
Registration Statement.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) (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, as amended (the "Securities Act");
(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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the SEC
by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, 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 from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering;
(b) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act 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.
Insofar as indemnification for liabilities arising under the Securities
Act 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 SEC such indemnification is against
public policy as expressed in the Securities 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 Securities 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
February 8, 1999.
FRESH FOODS, INC.
By: /s/ JAMES C. RICHARDSON, JR.
------------------------------------
James C. Richardson, Jr.
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Fresh Foods, Inc., do
hereby constitute and appoint each of Messrs. James C. Richardson, Jr., David
R. Clark, James E. Harris and Matthew V. Hollifield, each with full power of
substitution, our true and lawful attorney-in-fact and agent to do any and all
acts and things in our names and on our behalf in our capacities stated below,
which acts and things any of them may deem necessary or advisable to enable
Fresh Foods, Inc. to comply with the Securities Act of 1933, as amended, and
any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement, including
specifically, but not limited to, power and authority to sign for any or all of
us in our names, in the capacities stated below, any and all amendments
(including post-effective amendments) thereto; and we do hereby ratify and
confirm all that they shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ RICHARD F. HOWARD Chairman of the Board of February 8, 1999
- -------------------------------- Directors
Richard F. Howard
/s/ JAMES C. RICHARDSON, JR. Chief Executive Officer February 8, 1999
- -------------------------------- (principal executive
James C. Richardson, Jr. officer) and Vice Chairman
of the Board of Directors
/s/ DAVID R. CLARK President, Chief Operating February 8, 1999
- ------------------------------- Officer and Director
David R. Clark
/s/ JAMES E. HARRIS Executive Vice President, February 8, 1999
- ------------------------------- Chief Financial Officer
James E. Harris (principal financial
officer), Treasurer and
Secretary
/s/ PAMELA WITTERS Vice President-Finance February 8, 1999
- ------------------------------- (principal accounting
Pamela Witters officer)
/s/ NORBERT E. WOODHAMS Director February 8, 1999
- -------------------------------
Norbert E. Woodhams
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ LEWIS C. LANIER Director February 8, 1999
- ------------------------------------
Lewis C. Lanier
/s/ WILLIAM R. MCDONALD Director February 8, 1999
- ------------------------------------
William R. McDonald
/s/ E. EDWIN BRADFORD Director February 8, 1999
- ------------------------------------
E. Edwin Bradford
/s/ BOBBY G. HOLMAN Director February 8, 1999
- ------------------------------------
Bobby G. Holman
/s/ WILLIAM P. FOLEY II Director February 8, 1999
- ------------------------------------
William P. Foley II
/s/ ANDREW F. PUZDER Director February 8, 1999
- ------------------------------------
Andrew F. Puzder
/s/ L. DENT MILLER Director February 8, 1999
- ------------------------------------
L. Dent Miller
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4.1 Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's
Form S-4 Registration Statement filed with the Commission on
July 8, 1998)
4.2 Articles of Amendment dated September 2, 1997 (incorporated
by reference to Exhibit 3.2 to the Company's Annual Report on
Form 10-K for its fiscal year ended February 27, 1998)
4.3 Articles of Amendment dated May 8, 1998 (incorporated by
reference to Exhibit 3.3 to the Company's Annual Report on
Form 10-K for its fiscal year ended February 27, 1998)
4.4 By-laws of the Company (incorporated by reference to Exhibit
3.4 to the Company's Annual Report on Form 10-K for its
fiscal year ended February 27, 1998)
4.5 Rights Agreement dated as of September 2, 1997 between the
Registrant and American Stock Transfer & Trust Company,
Rights Agent (incorporated by reference to Exhibit 1 to the
Registrant's Current Report on Form 8-K filed on September 5,
1997)
23.1 Consent of Deloitte & Touche LLP
24 Powers of attorney (included on signature pages)
99.1 Form of Non-Employee Director Stock Purchase Loan Plan of the
Company dated February 8, 1999
99.2 Form of Election to Participate and Power of Attorney For the
Non-Employee Director Stock Purchase Loan Plan
99.3 Form of Loan and Stock Purchase Agreement For the
Non-Employee Director Stock Purchase Loan Plan
99.4 Form of Promissory Note For the Non-Employee Director Stock
Purchase Loan Plan
</TABLE>
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Fresh Foods, Inc. on Form S-8 of our report dated May 7, 1998, appearing in the
Annual Report on form 10-K of Fresh Foods, Inc. for the year ended February 27,
1998.
/s/ Deloitte & Touche LLP
Hickory, North Carolina
February 8, 1999
<PAGE> 1
EXHIBIT 99.1
FRESH FOODS, INC.
NON-EMPLOYEE DIRECTOR
STOCK PURCHASE LOAN PLAN
1. Purpose. The purpose of this Fresh Foods, Inc. Non-Employee Director
Stock Purchase Loan Plan is to attract and retain non-employee directors through
the availability of loans to acquire Company Stock.
2. Definitions. As used in this Plan, the following terms have the
meanings indicated:
(a) "AFR" means the applicable federal rate determined under
Section 1274 of the Internal Revenue Code of 1986, as amended.
(b) "Board" means the Board of Directors of the Company.
(c) "Company" means Fresh Foods, Inc., a North Carolina
corporation.
(d) "Company Stock" means common stock, par value $1.00 per
share, of the Company. In the event of a change in the capital
structure of the Company, the shares resulting from such a change shall
be deemed to be Company Stock within the meaning of this Plan.
(e) "Date of Loan" means the date as of which a Loan is
disbursed and the Note evidencing the Loan is issued.
(f) "Disability" means a physical or mental condition that, in
the judgment of the Board based upon competent medical evidence
satisfactory to the Board, totally and permanently prevents the
Participant from engaging in substantial gainful board service with the
Company in any capacity suitable and appropriate for an individual with
his or her background, training and experience. The Board's
determination shall be conclusive.
(g) "Loan" means a loan to a Participant to acquire Company
Stock, which shall be evidenced by a promissory note of the Participant
and such other documents as determined by the Board from time to
time.
(h) "Note" means a promissory note evidencing a Loan to a
Participant.
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(i) "Participant" means any non-employee director who receives
a Loan under this Plan.
(j) "Retirement" means termination at or after age 65.
(k) "Subsidiary" means, with respect to any corporation, a
subsidiary of that corporation within the meaning of Internal Revenue
Code section 424(f).
3. Eligibility.
(a) All present and future non-employee directors of the
Company or of any parent or Subsidiary of the Company, whether now existing or
hereafter created or acquired, shall be eligible for selection to receive Loans
under this Plan. The Board shall have the power and complete discretion to
select eligible non-employee directors to receive Loans.
(b) The grant of a Loan shall not obligate the Company or any
parent or Subsidiary of the Company to pay a director any particular director's
fees or to make further Loans to the non-employee director at any time
thereafter.
4. Maximum Amount of Loans.
(a) A maximum aggregate principal amount of loans outstanding
for all Participants may be determined by the Board and may be adjusted from
time to time. Procedures may be established for the allocation among eligible
non-employee directors of any amount available for Loans.
(b) The maximum aggregate principal amount of all Loans
outstanding for a Participant shall be determined by the Board in its
complete discretion.
The maximum amount of a Loan for a Participant shall be determined at
the Date of Loan and shall not be affected by any subsequent change in the
Participant's circumstances.
5. Loan Terms.
(a) Subject to the provisions of this Plan, the Board
shall have the power and complete discretion to determine for each Participant
the terms, conditions, nature and amount of a Loan.
(b) The Board shall establish as to each Loan a minimum
principal amount, the terms of repayment and any other terms and conditions
consistent with this Plan that are deemed appropriate by the Board. All
Loans made pursuant to this Plan shall include the following provisions:
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(i) All Company Stock acquired with a Loan shall be
acquired in compliance with applicable laws, including federal
and state securities laws.
(ii) A Loan shall be a full recourse obligation of
the Participant.
(iii) A Loan shall not be secured.
(iv) Subject to clauses (b)(v), (b)(vi), (c), (d) and
(e) below, the initial term of a Loan shall be five years from
the Date of Loan, interest shall accrue and accumulate over
the life of the loan and shall be due and payable at maturity,
and each Loan shall bear interest at a rate equal to the AFR
applicable on the Date of Loan.
(v) If a Participant's service with the Company
terminates due to death, Disability or Retirement, the Loan
shall be due and payable two years after the event.
(vi) If a Participant's service with the Company
terminates in any manner not covered by clause (v), the Loan
shall be due and payable 120 days following the date of
termination.
(c) At any time, the Board may, in its sole discretion,
and subject to such conditions as it may impose or authorize, extend the time
for repayment of a Loan or waive the Company's right, if any, to make other
adjustments to a Loan, provided that a change to a Loan shall not, without the
consent of the Participant, adversely affect a Participant's rights under a
previously granted Loan.
(d) The Board may provide that the interest rate on a Loan
shall increase if the Participant sells, encumbers or otherwise disposes of the
Company Stock acquired with the Loan. The Board may condition a Loan on the
Participant's complying with arrangements requested by the Company to implement
this section 5(d). Under any such arrangement, the Participant shall have
complete shareholder rights with respect to the Company Stock, including the
right to vote and receive dividends, and the Participant may sell the Company
Stock at any time.
(e) The Board may in its complete discretion on or prior
to the maturity of any particular Loan forgive all or a portion of the interest
which would otherwise be or become due and payable thereunder. The Board's
so acting with respect to any particular loan shall have no effect as to any
other particular loan.
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(f) The Company may place on any certificate representing
Company Stock acquired or held with the proceeds of a Loan any legend reasonably
deemed desirable by the Company to comply with federal or state securities laws.
6. Effective Date. This Plan shall be effective on and as of February
8, 1999.
7. Termination, Modification, Change. If not sooner terminated by the
Board, this Plan shall terminate at the close of business on the last day of the
Company's fiscal year ending in the year 2009. No Loans shall be made under this
Plan after its termination. The Board may terminate this Plan or may amend
this Plan in such respects as it shall deem advisable. A termination or
amendment of this Plan shall not, without the consent of the Participant,
adversely affect the Participant's rights under a previously granted Loan.
8. Plan Administration. This Plan shall be administered by the Board.
The Board shall have the authority to interpret this Plan, and its
interpretations shall be binding on all parties. This Plan shall be governed by,
and construed in accordance with, the laws of the State of North Carolina
without regard to conflict of laws principles thereof.
9. Nontransferability of Loans. Loans and all rights associated with
Loans, by their terms, shall not be transferable by the Participants except by
will, by the laws of descent and distribution or pursuant to a qualified
domestic relations order.
10. Notice. All notices and other communications required or permitted
to be given under this Plan shall be in writing and shall be deemed to have been
duly given if delivered personally or mailed first class, postage prepaid, as
follows: (a) if to the Company, at its principal business address, to the
attention of the Chief Financial Officer; (b) if to any Participant, at the last
address of the Participant known to the sender at the time the notice or other
communication is sent.
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<PAGE> 5
IN WITNESS WHEREOF, the Company has caused this Non-Employee Director
Stock Purchase Loan Plan to be executed this 8th day of February, 1999.
FRESH FOODS, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
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<PAGE> 1
EXHIBIT 99.2
ELECTION TO PARTICIPATE AND POWER OF ATTORNEY
I hereby elect to participate in the Non-Employee Director Stock
Purchase Loan Plan (the "Plan") of Fresh Foods, Inc. (the "Company") and agree
to borrow $__________, or such lesser amount as the Company may determine,
thereunder for the purpose of purchasing shares of the Company's Common Stock
(the "Shares") through the Company-designated broker-dealer (which initially the
Company has designated to be BancBoston Robertson Stephens Inc. (being from time
to time the "Designated Broker-Dealer")), which will attempt to make
privately-negotiated or open market purchases on behalf of participants,
including me, as well as for participants in the corresponding program for
employees. I understand that my election to participate is binding on me up to
the dollar amount I have filled in above, subject to the availability of Shares
from time to time.
I hereby constitute and appoint the Designated Broker-Dealer as my true
and lawful attorney-in-fact and agent (with full power of substitution) to act
on my behalf, and in my name, place and stead, to purchase Shares with the
proceeds of the above-described loan at prices prevailing from time to time and
to cause such Shares to be registered in the manner indicated below. I
understand that Shares will be purchased for participants through a single
brokerage account (substantially in the name "Participants under the Fresh
Foods, Inc. Stock Purchase Loan Programs") maintained by the Designated
Broker-Dealer. I hereby grant to each of the Designated Broker-Dealer and the
Company full power and authority to do and perform each and every act and thing
necessary or proper to be done in the exercise of the foregoing rights, and the
implementation and execution of the program and the transactions contemplated
thereunder, as fully as I could do if personally present, and I hereby ratify
and confirm all that either the Designated Broker-Dealer or the Company shall
lawfully do or cause to be done by virtue hereof.
I acknowledge that (i) I have received and reviewed a copy of the
Prospectus dated February 8, 1999 covering the Shares to be acquired under the
Plan as well as the Loan Agreement and form of promissory note attached thereto,
(ii) by completing, signing and returning this form and such Loan Agreement, I
am agreeing to borrow the amount specified above (or such lesser amount
determined by the Company) and to have the full amount of such loan applied by
the Designated Broker-Dealer to the purchase(s) of the Shares and am authorizing
the Designated Broker-Dealer to act on my behalf in carrying out such
purchase(s), (iii) the amount of my loan may be reduced pro rata by the Company
depending upon the availability of Shares for purchase and (iv) the loan will be
made only in conjunction with, and subject to, the closing of the
privately-negotiated or open market purchases referred to above and will be on
the terms set forth in the Loan Agreement (which I have signed and am returning
herewith) and the promissory note attached to the Loan Agreement (which I agree
to sign and return upon the closing of the loan and Share purchase(s)).
I request that, upon the closing of the loan and Share purchase(s), the
Shares purchased on my behalf be registered in the manner indicated below and be
delivered to the Company for safekeeping (check only one of the following):
<PAGE> 2
[ ] in the name of the individual signing below
[ ] as tenants in common in the names of _____________
__________________________________________________
[ ] as tenants by the entireties in the names of
__________________________________________________
[ ] as joint tenants with the right of survivorship
and not as tenants in common in the names of
__________________________________________________
[ ] other (specify): ________________________________
WITNESS my signature below.
Date: February 10, 1999 _________________________________
(Signature)
Print Name:______________________
Title:___________________________
Social Security No.______________
THIS FORM AND THE LOAN AND STOCK PURCHASE AGREEMENT MUST BE COMPLETED,
SIGNED AND RECEIVED BY JAMES E. HARRIS NO LATER THAN 12 NOON, EASTERN TIME, ON
WEDNESDAY, FEBRUARY 10, 1999, IN ORDER FOR YOU TO BE ELIGIBLE TO PARTICIPATE IN
THE INITIAL STAGE OF THE LOAN PROGRAM. SUBMISSION OF THESE DOCUMENTS BY FAX
((828) 459-3148) NO LATER THAN THE DEADLINE IS SATISFACTORY SO LONG AS THE
SIGNED ORIGINALS ARE PROMPTLY DELIVERED AFTERWARD.
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EXHIBIT 99.3
LOAN AND STOCK PURCHASE AGREEMENT
THIS LOAN AND STOCK PURCHASE AGREEMENT (as amended, supplemented or
modified from time to time, the "Loan Agreement") is dated as of February 10,
1999 and is between ________________ (the "Participant") and FRESH FOODS, INC.,
a North Carolina corporation (the "Company").
This Loan Agreement is made pursuant to the Fresh Foods, Inc.
Non-Employee Director Stock Purchase Loan Plan (the "Plan"). All terms not
otherwise defined herein shall have the meanings given such terms in the Plan.
Accordingly, the parties hereto agree as follows:
Section 1. Purchase and Loan.
(a) The Participant agrees, on the terms and conditions set
forth in this Loan Agreement, to purchase Company Stock as provided in his or
her Election To Participate And Power of Attorney. The Loan is for the purpose
of the Participant's acquiring shares of Company Stock ("Shares").
(b) The Company agrees, on the terms and conditions set forth
in this Loan Agreement, to make a loan (the "Loan") to the Participant under the
Plan. The loan shall be evidenced by, and repayable in accordance with, a single
promissory note in the form of Exhibit A hereto, appropriately completed (the
"Note").
Section 2. Participant Representations. The Participant
represents and warrants to the Company as follows:
(a) This Loan Agreement constitutes a valid and binding
agreement of the Participant, enforceable against the Participant in accordance
with its terms, except as (i) the enforceability hereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) the availability of equitable remedies may be limited by equitable
principles of general applicability.
(b) The Participant is aware of his or her responsibilities
under federal and state securities laws and will cooperate with the Company and
the Designated Broker-Dealer to take reasonable steps to ensure compliance
therewith at all times.
<PAGE> 2
Section 3. Events of Default.
(a) For purposes of this Loan Agreement, each of the
following events shall constitute an Event of Default:
(i) the Participant shall be in default under the
terms of the Note, or
(ii) the Participant shall fail to observe or perform
any covenant or agreement contained in this Loan Agreement for
ten days after written notice thereof has been given to the
Participant by the Company.
(b) Upon the occurrence of an Event of Default, the Company
shall have the rights and remedies set forth in the Note. The rights and
remedies provided herein and in the Note shall be cumulative and not exclusive
of any rights or remedies provided by law.
Section 4. Miscellaneous.
(a) No failure or delay by the Company in exercising any
right, power or privilege under this Loan Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
(b) This Loan Agreement may be amended only in a writing
signed by the Participant and the Company. Any waiver must be in a writing
signed by the waiving party.
(c) The provisions of this Loan Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. This Loan Agreement is for the benefit of the Company
and its successors and assigns. This Loan Agreement shall not be transferable by
the Participant except by will, by the laws of descent and distribution or
pursuant to a qualified domestic relations order.
(d) If any provision hereof is invalid and unenforceable in
any jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Company in order to carry out the
intentions of the parties hereto as nearly as may be possible, and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
Section 5. Governing Law. This Loan Agreement shall be
governed by and construed in accordance with the laws of the State of North
Carolina, without application of North Carolina conflict of law rules.
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<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this Loan
Agreement to be duly executed as of the day and year first above written.
PARTICIPANT:
-------------------------------------------
(Signature)
Print Name:
--------------------------------
Title:
-------------------------------------
FRESH FOODS, INC.
By:
----------------------------------------
Print Name:
--------------------------------
Title:
-------------------------------------
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<PAGE> 1
EXHIBIT 99.4
EXHIBIT A
PROMISSORY NOTE
$_________________ __________ ___, 1999
FOR VALUE RECEIVED, the maker, _________________________________,
promises to pay to Fresh Foods, Inc. (the "Company") the principal sum of
_______________ DOLLARS AND NO CENTS ($____), together with simple interest from
the date of this Note at the rate of 4.71% per annum, subject to adjustment as
provided below. If not sooner paid, the principal and any accrued but unpaid
interest shall be due and payable on _________ ___, 2004, except as provided
below. This Note is payable at the corporate offices of the Company at 3437 East
Main Street, Claremont, North Carolina, or at such other place as the Company
may designate in writing from time to time. This Note is issued pursuant to the
Fresh Foods, Inc. Non-Employee Director Stock Purchase Loan Plan (the "Plan")
and a Loan and Stock Purchase Agreement between the Company and maker (the "Loan
Agreement"). All terms not otherwise defined herein shall have the meanings
given such terms in the Plan and the Loan Agreement.
Prepayments. The maker may prepay this Note, in whole or in part, at
any time without penalty. Optional prepayments shall be applied first to the
repayment of principal and then to the payment of accrued but unpaid interest.
Share Certificates. The maker requests that the Company hold the
certificates representing the Shares as custodian for the maker's benefit in
order to assist the maker in avoiding an inadvertent disposition of any of the
Shares. The maker acknowledges that there are no restrictions on the maker's
right to sell or otherwise dispose of any of the Shares (other than those
restrictions imposed by the securities laws) and that maker may request, and is
entitled to receive, delivery of the certificates representing the Shares at any
time.
Interest Rate Adjustment. The maker acknowledges that the indebtedness
evidenced by this Note was incurred to enable the maker to acquire for cash in
an amount equal to the principal amount hereof ________ shares of Company Stock
(the "Shares"). If any Shares acquired by maker are sold, pledged or otherwise
transferred, the interest rate on this Note will be immediately adjusted to the
then prime rate of interest as reported in The Wall Street Journal or similar
publication plus 4% (the "Disposition Rate"), and the maker will thereupon be
required to make payments under this Note pursuant to a payment schedule to be
attached to this Note. Such payment schedule shall provide for regular monthly
payments in an amount sufficient to repay this Note fully at the Disposition
Rate in substantially equal installments by the fifth anniversary of the date of
this Note. In order for the maker to withdraw any Shares from the safekeeping of
the Company, the maker must first make arrangements reasonably satisfactory to
the Company regarding the registration and/or custody of the certificate(s)
representing such Shares so that the
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<PAGE> 2
Company may determine from time to time the interest rate applicable to this
Note; any failure to make such arrangements will cause the interest rate and
payment terms to be adjusted as described immediately above.
Termination of Service. (a) In the event of the maker's death,
Disability or Retirement, the entire unpaid principal balance of this Note and
any accrued but unpaid interest shall become due and payable on the second
anniversary of such event.
(b) In the event of any termination of the maker's service with the
Company not covered by subparagraph (a) above, the entire unpaid principal
balance of this Note and any accrued but unpaid interest shall become due and
payable 120 days following the date of termination.
Default. If any payment due hereunder is not made within 10 calendar
days following the date on which such payment was due, or if the maker is
declared or adjudicated to be bankrupt by a United States Bankruptcy Court, the
maker shall be in default hereunder. Upon the occurrence of a default under this
Note or the Loan Agreement, the entire unpaid principal balance of this Note and
all accrued but unpaid interest, if any, shall, at the option of the holder,
immediately become due and payable. Upon the occurrence of a default and, if the
unpaid principal balance of this Note has not already become due and payable,
the holder's exercise of such option, all amounts due under this Note (including
accrued but unpaid interest) shall thereafter accrue (or continue to accrue)
interest at a rate equal to the Disposition Rate. The rights and remedies
provided herein shall be cumulative and not exclusive of any rights or remedies
provided by law.
Severability. If any provision hereof is invalid and unenforceable in
any jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Company in order to carry out the
intentions of the parties hereto as nearly as may be possible, and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
No Waivers. No failure or delay by the Company in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
Miscellaneous. Presentment, demand, protest and notices of dishonor and
of protest are hereby waived by the maker to the extent permitted by law. The
maker agrees that he will pay, to the extent permitted by law, all expenses
incurred in collecting this obligation, including reasonable attorney's fees,
should this obligation or any part thereof not be paid as and when due. This
Note is non-negotiable.
Governing Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of North Carolina, without application of
North Carolina conflict of law rules.
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
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