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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
(Amendment No. 1)
FRESH FOODS, INC.
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(Name of Issuer)
Common Stock, par value $1.00 per share
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(Title of Class of Securities)
929330 10 8
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(CUSIP Number)
CHARLES F. CONNOR, JR.
P. O. BOX 730
CLAREMONT, NORTH CAROLINA 28610
(704) 459-0821
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
DECEMBER 22, 1999
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(Date of Event Which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box: [ ]
(Page 1 of 2 Pages)
(continued on following pages)
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<TABLE>
<S> <C> <C>
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13D
CUSIP No. 929330 10 8 Page 2 of 2 Pages
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1 NAME OF REPORTING PERSON Charles F. Connor, Jr.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY)
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS* OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
========================= ======== =============================================================================================
7 SOLE VOTING POWER
NUMBER OF 649,763
SHARES ======== =============================================================================================
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH ======== =============================================================================================
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 649,763
WITH ======== =============================================================================================
10 SHARED DISPOSITIVE POWER
-0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
649,763
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [X]
=================== ============================================================================================================
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.2%
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14 TYPE OF REPORTING PERSON*
IN
=================== ============================================================================================================
* SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
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ITEM 1. SECURITY AND ISSUER.
Item 1 of the Schedule 13D is revised and amended and restated
in its entirety as set forth below:
This Statement relates to shares of Common Stock, par value
$1.00 per share (the "Common Stock"), of Fresh Foods, Inc. (formerly known as
WSMP, Inc.), a North Carolina corporation (the "Company"). The address of the
Company's principal executive office is 361 Second Street, NW, Hickory, North
Carolina 28601.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 of the Schedule 13D is revised and amended and restated
in its entirety as set forth below:
(a) Mr. Connor is the beneficial owner of 649,763 shares of
Common Stock, representing approximately 11.2% of the Company's currently
outstanding Common Stock. The percentages calculated in this Item 5 are based
upon 5,810,004 shares of Common Stock outstanding as reported on the Company's
quarterly report on Form 10-Q filed October 19, 1999.
(b) Mr. Connor has sole voting and dispositive power with
respect to 649,763 shares of Common Stock that he beneficially owns. Such amount
includes 36,309 shares held by County-Wide Insurance Agency, Inc., a corporation
of which Mr. Connor is the majority shareholder. Such amount excludes 21,868
shares held by Mr. Connor's wife as to which shares Mr. Connor disclaims
beneficial ownership.
(c) Mr. Connor has not effected any transaction in shares of
Common Stock during the past 60 days, except as disclosed in item 6.
(d) No person other than Mr. Connor has the right to receive
or the power to direct the receipt of dividends from, or the proceeds from the
sale of, the Common Stock.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Item 6 of the Schedule 13D is revised and amended and restated
in its entirety as set forth below:
In connection with the merger (the "Merger") of WSMP
Acquisition, Inc., a North Carolina corporation and wholly-owned subsidiary of
the Company ("Sub"), with and into Sagebrush, Inc., a North Carolina corporation
("Sagebrush"), pursuant to an Agreement and Plan of Merger dated as of November
14, 1997 (the "Merger Agreement") among the Company, Sub, Sagebrush, Mr. Connor
and L. Dent Miller, Mr. Connor entered into an Affiliate Agreement with
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the Company dated January 29, 1998 (the "Affiliate Agreement"), whereby he
agreed not to sell, pledge, transfer or otherwise dispose of any Common Stock
issued to him in the Merger, except pursuant to an effective registration
statement or in compliance with Rule 145 or an exemption from the registration
requirements of the Securities Act.
In addition, in the Merger Agreement the Company agreed to
prepare and file with the Commission, within 30 days after the effective time of
the Merger, and thereafter use its reasonable best efforts to cause to be
declared effective by the Commission, a registration statement providing for the
registration under the Securities Act of those shares of Common Stock issued as
consideration in the Merger to or for the benefit of certain affiliates of
Sagebrush (including Mr. Connor). Such registration statement became effective
on or before March 1999.
On December 22, 1999 Mr. Connor entered into a stock purchase
agreement (the "Stock Purchase Agreement") with James C. Richardson, Jr. whereby
he agreed to sell all shares of Common Stock beneficially owned by him to Mr.
Richardson at a price of $8.25 per share on or before January 31, 2000. The
Stock Purchase Agreement also covers shares held by Mr. Connor's wife and adult
children as to which shares Mr. Connor disclaims beneficial ownership. Under the
Stock Purchase Agreement, $100,000 of the purchase price was payable in escrow
upon execution of the agreement, $2,400,000 of the purchase price is payable at
closing and the balance is payable under a note due no later than 3 years after
the closing, with a portion of the shares sold being held in escrow pending
payment of the note. A copy of the Stock Purchase Agreement is filed as Exhibit
3 to this Amendment No. 1 to Schedule 13D and is incorporated in its entirety
herein by reference thereto.
In connection with Mr. Connor's disposition of all of his
investment in the Company, the Company has agreed to enter into a consulting and
non-competition agreement with Mr. Connor, providing for payments to Mr. Connor
of $200,000 per year and family medical insurance coverage for five years. It is
also expected that County-Wide Insurance Agency, Inc., an insurance agency of
which Mr. Connor is the principal owner will continue to provide insurance
coverage for the Company.
Except as set forth in Item 4 and this Item 6, no contracts,
arrangements, understandings or relationships (legal or otherwise) exist among
Mr. Connor and any other person with respect to any securities of the Company,
including but not limited to transfer or voting of any such securities, finder's
fees, joint ventures, loan or option arrangements, puts or calls, guarantees of
profits, division of profits or loss, or the giving or withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 of the Schedule 13D is revised and amended and restated
in its entirety as set forth below:
1. Agreement and Plan of Merger dated as of November 14, 1997 among the
Company, Sub, Sagebrush, Mr. Connor and L. Dent Miller and the related
Plan of Merger (included as Appendix A to the Joint Proxy
Statement-Prospectus constituting a part of the Company's Registration
Statement on Form S-4 (Registration No. 333-43921) filed with
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the Commission on January 8, 1998 and, pursuant to Rule 12b-32 under
the Exchange Act, incorporated by reference herein).
2. Affiliate Agreement dated as of January 29, 1998 between Mr. Connor and
the Company (included as Exhibit 2 to the Schedule 13D of Mr. Connor
filed with the Commission on February 9, 1998 and, pursuant to Rule
12b-32 under the Exchange Act, incorporated by reference herein).
3. Stock Purchase Agreement between Mr. Connor and Mr. Richardson dated
December 22, 1999 (filed herewith).
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SIGNATURE
After reasonable inquiry and to the best of the undersigned's knowledge
and belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
December 30, 1999
/s/ Charles F. Connor, Jr.
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Charles F. Connor, Jr.
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EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
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1 Agreement and Plan of Merger dated as of November 14, *
1997 among the Company, Sub, Sagebrush, Mr. Connor
and L. Dent Miller and the related Plan of Merger
(included as Appendix A to the Joint Proxy
Statement-Prospectus constituting a part of the
Company's Registration Statement on Form S-4
(Registration No. 333-43921) filed with the
Commission on January 8, 1998 and, pursuant to Rule
12b-32 under the Exchange Act, incorporated by
reference herein).
2 Affiliate Agreement dated as of January 29, 199 *
between Mr. Connor and the Company (included as
Exhibit 2 to the Schedule 13D of Mr. Connor filed
with the Commission on February 9, 1998 and, pursuant
to Rule 12b-32 under the Exchange Act, incorporated
by reference herein).
3 Stock Purchase Agreement between Mr. Connor and Mr. 8
Richardson dated December 22, 1999
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EXHIBIT 3
STATE OF NORTH CAROLINA
CATAWBA COUNTY
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made and entered into as
of the 22 day of December, 1999, by and between Charles F. Connor, Jr., a
citizen and resident of Catawba County, North Carolina (hereinafter "Seller");
and James C. Richardson, Jr., a citizen and resident of Catawba County, North
Carolina (hereinafter "Buyer").
RECITALS
A. Seller is the owner of 716,063 shares of common stock (the "Stock")
of Fresh Foods, Inc., (hereinafter the "Corporation"), a corporation organized
and existing under the laws of the State of North Carolina, having its principal
place of business in Catawba County, North Carolina, and said stock is traded
over National Association of Security Dealers Automated Quotation System
(NASDAQ) having the symbol "FOOD".
B. Seller desires to sell all of his stock in the Corporation to Buyer,
and Buyer desires to purchase all of Seller's stock in the Corporation pursuant
to the terms and provisions hereof.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
SALE OF STOCK
Seller hereby sells, assigns, transfers and sets over to Buyer 716,063
shares of common stock owned by the Seller in the Corporation. Buyer hereby
agrees to purchase the Stock and agrees to pay in consideration thereof the
purchase price of Eight and 25/100 Dollars ($8.25) per share, for a total of
$5,907,519.75 (the "Purchase Price"), to be payable as follows:
1.1 Earnest Money Deposit. Upon execution hereof, Buyer shall
deliver the sum of One Hundred Thousand Dollars ($100,000.00)
to Charles R. Young, Sr., as Trustee, to be held by Charles R.
Young, Sr., as Trustee, until the Closing (as defined below)
of the transaction contemplated hereby (the "Earnest Money
Deposit"). The Earnest Money Deposit shall be credited toward
the Purchase Price at the Closing.
1.2 Cash Payment at Closing. Buyer shall deliver the sum of Two
Million Four Hundred Thousand Dollars ($2,400,000.00) to
Seller at the Closing of the subject transaction.
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1.3 Payment of Balance of Purchase Price after Closing. At the
Closing, Buyer shall deliver a Promissory Note to the Seller
in the principal amount of the remaining balance of the
Purchase Price. Said Promissory Note shall bear interest at
the rate of eight (8%) percent per annum. The Buyer shall pay
interest payments only on an annual basis on the twelfth
(12th) month and the twenty-fourth (24th) month following the
Closing. The entire outstanding principal balance and any
interest accrued thereon shall be due and payable no later
than three (3) years from the date of the Closing. There shall
be no prepayment penalty for early payment of all or any part
of the amount due.
ARTICLE II
DELIVERY OF STOCK IN ESCROW
2.1 Stock Certificates to Escrow Agent. At the Closing, Seller shall
deliver to Charles R. Young, Sr., whose address is 400 Second Avenue NW,
Hickory, North Carolina 28601, as "Escrow Agent", free and clear of all
encumbrances and restrictions on transfer, all certificates for the shares of
Stock sold pursuant to this Agreement, duly endorsed for transfer to Buyer and
accompanied by all other documents necessary for an effective transfer.
2.2 Shares Transferred Directly to Buyer at Closing. At the Closing,
the number of shares of the Stock represented by the sum of Two Million Five
Hundred Thousand Dollars ($2,500,000.00) at the price of Eight and 25/100
Dollars ($8.25) per share shall be conveyed to the Buyer.
2.3 Balance of Shares Delivered upon Payment of Promissory Note. Upon
the payment of the balance of the Purchase Price under the terms of the subject
Promissory Note in the principal sum of $3,407,519.75, on or before the due date
as provided for in the said Promissory Note, the Escrow Agent shall deliver the
remaining balance of shares of Stock being sold hereunder, together with the
necessary stock transfer stamps duly affixed thereon, and all other documents
delivered to the Escrow Agent to effectively transfer such shares, to the Buyer.
2.4 Escrow Fees. The fees and all other expenses of the Escrow Agent
shall be paid by Buyer.
2.5 Escrow Agreement. At the Closing, the Seller, Buyer and Escrow
Agent shall enter into a formal Escrow Agreement containing standards terms and
provisions governing the duties and responsibilities of the Escrow Agent.
ARTICLE III
CLOSING
The Closing of the transactions contemplated hereby shall occur on or
before January 31, 2000 (the "Closing") at 10:00 AM at the law offices of Tate,
Young, Morphis, Bach & Taylor, LLP, 400 Second Avenue NW, Hickory, North
Carolina, or at such other time and place as the parties may mutually agree
upon.
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ARTICLE IV
VOTING RIGHTS DURING ESCROW
As long as the Buyer is not in default in the payment of the balance of
the Purchase Price pursuant to the subject Promissory Note, the Buyer shall have
the right to vote the Stock delivered to Buyer at Closing and on deposit with
the Escrow Agent. In connection therewith, Seller shall at Closing execute and
deliver an effective, irrevocable proxy or proxies in favor of Buyer or Buyer's
nominee or nominees, and Buyer shall have the right, in Buyer's sole discretion,
to designate one or more nominees to vote the proxy or proxies pursuant to the
terms of this Agreement.
ARTICLE V
DIVIDENDS DURING ESCROW
Any and all dividends paid on the Stock held by the Escrow Agent during
the term of the subject Promissory Note shall be the property of the Buyer.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Seller represents and warrants as follows:
(a) Seller is the owner of, free and clear of any liens,
encumbrances and charges, and has full power to sell and
transfer to Buyer the Stock.
(b) The sale of the Stock by Seller pursuant to this Agreement is
an isolated transaction by the Seller, who does not intend to
make any other sales and who has not made any sales or
purchases of such stock within the past __________ months.
ARTICLE VII
DELIVERIES BY SELLER AT CLOSING
At the Closing, Seller shall deliver the following documents and
instruments:
(a) All stock certificates representing 716,063 shares of common
stock owned by Seller in the Corporation. Said certificates
shall be endorsed for transfer to Buyer, thereby transferring
the subject shares free and clear of any and all liens and
encumbrances;
(b) An Escrow Agreement containing standard terms and provisions
governing the duties and responsibilities of the Escrow Agent
and the parties with respect to that portion of the Stock
being held by the Escrow Agent; and
(c) Such other documents as may be reasonably necessary in the
opinion of Buyer to effectuate the transactions contemplated
by this Agreement.
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ARTICLE VIII
DELIVERIES BY BUYER AT CLOSING
At the Closing, Buyer shall deliver the following:
(a) The sum of Two Million Four Hundred Thousand Dollars
($2,400,000.00) in cash or certified funds as part of the
Purchase Price payable to the Seller;
(b) The Promissory Note in favor of Seller containing the terms
and provisions set forth in Section 1.3 hereof and the
standard and customary terms of such a Promissory Note.
(c) An escrow agreement containing standard terms and provisions
governing the duties and responsibilities of the Escrow Agent
and the parties with respect to that portion of the Stock
being held by the Escrow Agent; and
(d) Such other documents as may be reasonably necessary in the
opinion of Seller to effectuate the transactions contemplated
by this Agreement.
ARTICLE IX
FILINGS AND REGISTRATION
Buyer agrees to perform and to pay for the costs and expenses required
in connection with any filings and registration with the Securities and Exchange
Commission, the Corporation, and any and all other entities or agencies required
in order to close this transaction.
ARTICLE X
BROKERAGE
Buyer and Seller represent that there are no brokerage or other
commissions due relative to the sale and transfer of the Stock by Seller to
Buyer.
ARTICLE XI
ENTIRE AGREEMENT
This Agreement sets forth and contains the entire agreement between the
Buyer and Seller with respect to the subject stock, and will not be modified or
terminated except by agreement in writing executed by both parties.
ARTICLE XII
GOVERNING LAW
This Agreement shall be construed in accordance with and governed by
the laws of the State of North Carolina.
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IN WITNESS WHEREOF, the parties hereby have executed this Stock
Purchase Agreement by affixing their hands and seals hereto on the date first
above written.
SELLER:
/s/ Charles F. Connor, Jr. (SEAL)
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Charles F. Connors, Jr.
BUYER:
/s/ James C. Richardson, Jr. (SEAL)
----------------------------
James C. Richardson, Jr.
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