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Xxxxxxx 00.00
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XXXXXXX XXXXXX
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made and entered into as
of the 9th day of February, 2000, by and between Xxxx Xxxxxxxxx, a citizen and
resident of Catawba County, North Carolina (hereinafter "Seller"); and Xxxxx X.
Xxxxxxxxxx, Xx., or his assigns, a citizen and resident of Catawba County, North
Carolina (hereinafter "Buyer").
RECITALS
A. Seller is the owner of 31,533 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 a 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 31,533
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 Dollars ($8.00) per share, for a total of $252,264.00
(the "Purchase Price"), to be payable as follows:
1.1 Cash Payment at Closing. Buyer shall deliver the sum of One
Hundred Twenty-Six Thousand One Hundred Thirty-Two Dollars
($126,132.00) to Seller at the Closing of the subject
transaction.
1.2 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. However, if substantially all of the assets
of Fresh Foods, Inc., or substantially all of
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the voting stock of Fresh Foods, Inc., are sold to a party
unrelated to Xxxxx X. Xxxxxxxxxx, Xx., then the entire amount
due under the provisions of the Promissory Note shall become
due and payable as of the closing of the Fresh Foods sale.
ARTICLE II.
DELIVERY OF STOCK IN ESCROW
2.1 Stock Certificates to Escrow Agent. At the Closing, Seller shall
deliver to Xxxxxxx X. Xxxxx, Xx., whose address is 000 Xxxxxx Xxxxxx XX,
Xxxxxxx, Xxxxx Xxxxxxxx 00000, 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,
15,757 shares of the Stock 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 $126,132.00, 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 February 9, 2000 (the "Closing") at 3:00 P.M. at the law offices of Xxxx,
Young, Morphis, Bach & Xxxxxx, LLP, 400 Second Avenue NW, Hickory, North
Carolina, or at such other time and place as the parties may mutually agree
upon.
ARTICLE IV.
RIGHTS TO SELL STOCK OR ASSIGN DEBT
Xxxxx X. Xxxxxxxxxx, Xx., shall have the right to sell the subject
stock and assign the indebtedness evidenced by the Promissory Note set forth in
Paragraph 1.2 hereinabove, provided
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that Xxxxx X. Xxxxxxxxxx, Xx., remains as a Guarantor of payment and performance
of the indebtedness and other conditions evidenced by the Promissory Note and
the provisions of Paragraph 1.2 are performed.
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 WARRANTEES
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 six
months.
ARTICLE VII.
DELIVERIES BY SELLER AT CLOSING
At the Closing, Seller shall deliver the following documents and
instruments:
(a) All stock certificates representing 31,533 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.
ARTICLE VII.
DELIVERIES BY BUYER AT CLOSING
At the Closing, Buyer shall deliver the following:
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(a) The sum of One Hundred Twenty-Six Thousand One Hundred
Thirty-Two Dollars ($126,132.00) 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 1.2 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.
RELEASES
(a) Release by Seller. For himself and his affiliates, related parties,
heirs, assigns, agents, servants and representatives (the "Xxxxxxxxx Group"),
Seller does hereby release and forever discharge and acquit the affiliates,
related parties, employees, officers, directors, shareholders, attorneys,
accountants, agents, servants, representatives, successors and assigns of Fresh
Foods, Inc. (the "Fresh Foods Entities"), Fresh Foods, Inc., and Buyer, his
affiliates, related parties, heirs, assigns, agents, servants and
representatives, from any and all claims, demands, actions, rights, causes of
action, obligations and liabilities, known and unknown (collectively "Claims")
that he or the Xxxxxxxxx Group or any of them has. could or may have against
Fresh Foods, Inc., Fresh Foods Entities and/or Buyer, from the beginning of time
to the date of this Agreement, including any and all Claims that have arisen,
may have arisen or might arise at any time in the future from the status of any
of them as a Company shareholder. Seller represents and warrants to Fresh Foods,
Inc. and Buyer that he has not assigned, transferred or
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conveyed in any manner all or any par[ of his Claims against Fresh Foods, Inc.,
any of the Fresh Foods Entities, or Buyer. Seller further represents and
warrants to Fresh Foods, Inc., and Buyer that this Agreement is the legal, valid
and binding obligation of himself, enforceable against him accordance with its
terms.
(b) Release by Fresh Foods, Inc. and Buyer. Fresh Foods, Inc. and Buyer
do hereby release and forever discharge Seller from any and all Claims that
Fresh Foods, Inc. and/or Buyer has or may have against Seller from the beginning
of time until the date of this Agreement. Fresh Foods, Inc. and Buyer represent
and warrant to Seller that neither Fresh Foods, Inc, the Fresh Foods Entities,
nor Buyer have assigned, transferred or conveyed in any manner all of any part
of any Claim against Seller. Fresh Foods, Inc., and Buyer further represent and
wan-ant to Seller that this Agreement is the legal, valid and binding obligation
of Fresh Foods, Inc., and Buyer, enforceable against Fresh Foods, Inc. and Buyer
in accordance with its terms.
(c) Fresh Foods, Inc. Securities. Seller represents and warrants to
Fresh Foods, Inc. and Buyer that, other than the shares of Fresh Foods, Inc.,
common stock that he has unconditionally contracted to sell to Buyer, he does
not own any shares of common stock or other securities issued by Fresh Foods,
Inc. Except in the event of default by Buyer, Seller covenants and agrees with
Fresh Foods, Inc. that he will not at any time hereafter purchase or otherwise
acquire (so as to beneficiarily own) any security issued by Fresh Foods, Inc.
The Seller's wife is the owner of over 500 shares of Fresh Foods, Inc. stock,
which is not being sold.
(d) Fresh Foods a Beneficiary. Fresh Foods, Inc. is a third party
beneficiary of the provisions of this Article and Seller acknowledges that the
provisions herein in favor of Fresh .Foods, Inc., were a material inducement to
Buyer entering into this Agreement and that the Seller has received adequate and
sufficient le-a] consideration therefor.
ARTICLE XII.
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 XIII.
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/ Xxxx Xxxxxxxxx (SEAL)
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Xxxx Xxxxxxxxx
BUYER:
/s/ Xxxxx X. Xxxxxxxxxx, Xx. (SEAL)
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Xxxxx X. Xxxxxxxxxx, Xx.
FRESH FOODS, INC. (*)
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Vice-Chairman
(*) Fresh Foods, Inc. is a party to this agreement
for the purposes of Article XI and for no other
purpose.
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