-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E8rVnpfDaH6+hkXWmYNuBAt97ydJtzUZmfVT0OiIvaATVKyCe4jxdhUNRoOdLWCX k3uFcSdwft9SW9UPjIe9OQ== 0000950144-99-001151.txt : 19990209 0000950144-99-001151.hdr.sgml : 19990209 ACCESSION NUMBER: 0000950144-99-001151 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19990208 EFFECTIVENESS DATE: 19990208 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FRESH FOODS INC CENTRAL INDEX KEY: 0000067494 STANDARD INDUSTRIAL CLASSIFICATION: BAKERY PRODUCTS [2050] IRS NUMBER: 560945643 STATE OF INCORPORATION: NC FISCAL YEAR END: 0306 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-71979 FILM NUMBER: 99524279 BUSINESS ADDRESS: STREET 1: P O BOX 399 CITY: CLAREMONT STATE: NC ZIP: 28610 BUSINESS PHONE: 7044597626 MAIL ADDRESS: STREET 1: PO BOX 399 CITY: CLAREMONT STATE: NC ZIP: 28610 FORMER COMPANY: FORMER CONFORMED NAME: WSMP INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: WESTERN STEER MOM N POPS INC DATE OF NAME CHANGE: 19880719 FORMER COMPANY: FORMER CONFORMED NAME: MOM N POPS HAM HOUSE INC DATE OF NAME CHANGE: 19810827 S-8 1 FRESH FOODS FORM S-8 NON-EMPLOYEE DIRECTOR STOCK 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
========================================================================================================================= 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 - ------------------------------------------------------------------------------------------------------------------------- Common Stock, $1.00 (1) (2) $600,000 $167 (3) par value =========================================================================================================================
(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. =============================================================================== 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. 2 3 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. 3 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. 4 5 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:
SIGNATURE TITLE DATE - --------- ----- ---- /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
5 6 /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
6 7 EXHIBIT INDEX
Exhibit Number Description - ------- ----------- 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
7 EX-23.1 2 CONSENT OF DELOITTE & TOUCHE 1 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 EX-99.1 3 FORM OF NON-EMPLOYEE DIRECTOR STOCK PURCHASE 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. 1 2 (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: 2 3 (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. 3 4 (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. 4 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: ___________________________ 5 EX-99.2 4 FORM OF ELECTION TO PARTICIPATE 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): 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. 2 EX-99.3 5 FORM OF LOAN & STOCK PURCHASE AGREEMENT 1 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. 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. 2 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: ------------------------------------- 3 EX-99.4 6 FORM OF PROMISSORY NOTE 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 1 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: ----------------------------- 2 -----END PRIVACY-ENHANCED MESSAGE-----