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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 0000 Xxxx
Xxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx, 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. 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 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.
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Termination of Employment. (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 employment 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.
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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.
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Name:
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Title:
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