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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 RULE
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(AMENDMENT NO. 1)
FRESH FOODS, INC., formerly known as WSMP, INC.
(Name of the Issuer)
Common Stock
(Title of Class of Securities)
929330 10 8
(CUSIP Number)
L. Dent Miller
209 Museum Road
Statesville, North Carolina 28625
(704) 872-2555
(Name, address and Telephone Number of Person
Authorized to Receive Notice and Communications)
January 6, 2000
(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(e), 13d-1(f) or 13d-1(g), check the
following box: [ ]
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 (the "Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act.
(Continued on following pages)
(Page 1 of 2 Pages)
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CUSIP No. 929330 10 8 13D Page 2 of 2 Pages
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1 NAMES OF REPORTING PERSONS L. Dent Miller
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (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
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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
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NUMBER OF SHARES 7 SOLE VOTING POWER 571,421 (1)
BENEFICIALLY OWNED BY
EACH REPORTING PERSON
WITH
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8 SHARED VOTING POWER -0-
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9 SOLE DISPOSITIVE POWER 571,421 (1)
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10 SHARED DISPOSITIVE POWER -0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
571,421 (1)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN SHARES
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.8% (2)
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14 TYPE OF REPORTING PERSON
IN
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(1) Consists of (i) 521,421 shares owned of record and (ii) 50,000 shares
subject to currently exercisable call options.
(2) The ownership percentage calculated in Row 13 is based upon 5,810,004 shares
of Common Stock outstanding as reported in the Company's quarterly report on
Form 10-Q filed October 19, 1999 plus 50,000 shares subject to currently
exercisable call options owned by Mr. Miller.
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Item 1. SECURITY AND ISSUER.
Item 1 is amended and restated in its entirety as set forth below:
This Statement relates to shares of Common Stock, no par value (the
"Common Stock"), of Fresh Foods, Inc., a North Carolina corporation (the
"Company"). The address of the Company's principal executive office is 9990
Princeton Road, Cincinnati, Ohio 45246.
Item 2. IDENTITY AND BACKGROUND.
Item 2(a) is not amended.
Item 2(b) is amended and restated in its entirety as set forth below:
(b) The residence address of Mr. Miller is 209 Museum Road, Statesville, North
Carolina 28625.
Item 2(c) is amended and restated in its entirety as set forth below:
(c) Mr. Miller's present principal occupation is as a co-owner of Commercial
First, LLC, a commercial real estate firm.
Items 2(d) through 2(f) are not amended.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 is not amended.
Item 4. PURPOSE OF TRANSACTION.
Item 4 is not amended.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is amended and restated in its entirety as set forth below:
(a) Mr. Miller is the beneficial owner of 571,421 shares of Common Stock
(consisting of 521,421 shares owned of record and 50,000 shares subject to
currently exercisable call options), representing approximately 9.8% of the
Company's currently outstanding Common Stock. The ownership percentage
calculated in this Item 5 is based upon 5,810,004 shares of Common Stock
outstanding as reported in the Company's quarterly report on Form 10-Q filed
October 19, 1999, plus 50,000 shares subject to currently exercisable call
options owned by Mr. Miller.
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(b) Mr. Miller has sole voting and dispositive power with respect to the 571,421
shares of Common Stock he beneficially owns.
(c) See Item 6 as it relates to the Stock Purchase Agreement between Mr. Miller
and Mr. Richardson.
Mr. Miller held call options to purchase 100,000 shares of Common Stock
which expired on January 8, 2000.
(d) No person other than Mr. Miller 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 is 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. Charles F. Connor,
Jr. and Mr. Miller, Mr. Miller entered into an Affiliate Agreement with 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. Miller). Such registration statement became effective on or before March
1999.
On January 6, 2000, Mr. Miller entered into a Stock Purchase Agreement
(the "Stock Purchase Agreement") with Mr. 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 $7.00 per share on or before January 31, 2000. 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
three 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
herein by this reference thereto.
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In connection with Mr. Miller's disposition of all of his investment in
the Company, the Company and Mr. Miller have entered into a Consulting and
Noncompete Agreement dated as of January 6, 2000 providing for payments to Mr.
Miller of $200,000 per year and family medical insurance coverage for five
years. Mr. Miller also resigned from his position as a member of the Board of
Directors of the Company pursuant to the Consulting and Noncompete Agreement.
Except as set forth in Item 4 and this Item 6, no contracts,
arrangements, understandings or relationships (legal or otherwise) exist among
Mr. Miller 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 is 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. Miller and Charles F. Connor, Jr. 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, 1998 between Mr. Miller and
the Company (included as Exhibit 2 to the Schedule 13D of Mr. Miller
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. Miller and Mr. Richardson entered
into as of January 6, 2000.
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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.
January 18, 2000
/s/ L. Dent Miller
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L. Dent Miller
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
1 Agreement and Plan of Merger dated as of November 14, 1997
among the Company, Sub, Sagebrush, Mr. Miller and Charles F.
Conner, Jr. 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, 1998 between Mr.
Miller and the Company (included as Exhibit 2 to the Schedule
13D of Mr. Miller 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. Miller and Mr.
Richardson entered into as of January 6, 2000.
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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 6th day of January, 2000, by and between L. DENT MILLER, 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 521,421 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 521,421
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 SEVEN DOLLARS ($7.00) PER SHARE, for a total of $3,649,947.00
(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 FIVE HUNDRED THOUSAND DOLLARS ($2,500,000.00) to
Seller at the Closing of the subject transaction.
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
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balance of the Purchase Price. Said Promissory Note shall
bear interest at the rate of nine (9%) 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 SEVEN DOLLARS ($7.00)
per share shall be conveyed directly 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 $1,149,947.00, 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 9:00 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 given 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 521,421 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
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(c) Such other documents as may be reasonably necessary in the
opinion of Buyer to effectuate the transactions contemplated
by this Agreement.
ARTICLE VIII.
DELIVERIES BY BUYER AT CLOSING
At the Closing, Buyer shall deliver the following:
(a) The sum of TWO MILLION FIVE HUNDRED THOUSAND DOLLARS
($2,500,000.00) 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, a provision
permitting the Buyer to assign the debt to another, provided
the Buyer remains as a guarantor, and other 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.
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ARTICLE XII.
GOVERNING LAW
This Agreement shall be construed in accordance with and governed by
the laws of the State of North Carolina.
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/ L. DENT MILLER (SEAL)
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L. DENT MILLER
BUYER:
/s/ JAMES C. RICHARDSON, JR. (SEAL)
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JAMES C. RICHARDSON, JR.
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