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EXHIBIT 5
AMENDMENT TO STOCK PURCHASE AGREEMENT
This Amendment (this "Amendment") is made and entered as of January 31,
2000 by and among Xxxxxxx X. Xxxxxx, Xx. ("Xxxxxx"), the other shareholders of
Fresh Foods, Inc. listed on Exhibit A hereto (with Connor, the "Selling
Shareholders), and Xxxxx X. Xxxxxxxxxx, Xx. ("Buyer").
RECITALS
X. Xxxxxx, as "Seller," and Buyer have entered into a Stock Purchase
Agreement dated as of December 22, 1999 (the "Stock Purchase Agreement"),
providing for the sale of certain shares of the common stock (the "Stock") of
Fresh Foods, Inc. (the "Corporation") to Buyer.
X. Xxxxxx and Buyer have agreed to enter into this Amendment to
correct, clarify and modify certain of the terms of the Stock Purchase Agreement
and to provide for the joinder therein of the other Selling Shareholders.
C. The other Selling Shareholders have agreed to enter into this
Amendment to provide for their sale to Buyer of their shares of the Stock to
Buyer under the terms of the Stock Purchase Agreement, as amended hereby.
D. Capitalized terms used herein and not otherwise defined herein but
defined in the Stock Purchase Agreement shall have the meanings herein that are
ascribed to them in the Stock Purchase Agreement.
NOW, THEREFORE, the parties hereby agree that the Stock Purchase
Agreement be and hereby is amended as follows:
1. All references in the Stock Purchase Agreement to "Seller" shall refer
collectively to the Selling Shareholders. The numbers of shares of the
Stock to be sold by each of the respective Selling Shareholders is set
forth by their respective names on Exhibit A hereto. The total number
of shares of the Stock to be sold pursuant to the Stock Purchase
Agreement shall be 715,163, rather than the 716,063 shares originally
stated therein.
2. The purchase price for the Stock to be purchased and sold under the
Stock Purchase Agreement shall be $8.528 per share, rather than the
$8.25 per share originally stated therein. The aggregate purchase price
to be paid in cash at the Closing shall be Two Million Five Hundred
Thousand Dollars ($2,500,000.00), including the $100,000.00 held as the
Xxxxxxx Money Deposit under the Stock Purchase Agreement. Such
aggregate purchase price to be paid in cash at the Closing shall be
paid for the accounts of the respective Selling Shareholders in the
respective amounts set forth on Exhibit A hereto, against receipt of
the shares so purchased, but shall be remitted to Connor as agent for
all such Selling Shareholders, to be remitted by him to the other
Selling Shareholders promptly upon his receipt thereof from Buyer in
accordance with the amounts to be paid to them as set forth on Exhibit
A. Each of the other Selling Shareholders hereby appoints Connor as
his, her or its agent to deliver his, her or its shares of the Stock at
the Closing and to receive payment of the cash purchase price therefor
for his, her, or its account and to promptly remit to him, her or it
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the amount to which he, she or it is so entitled therefrom. The Selling
Shareholders agree that such remittance to Connor shall be a full
acquittance of Buyer for his obligation to make such payments at the
Closing.
3. As provided in the Stock Purchase Agreement and as indicated on Exhibit
A hereto, a portion of the purchase price due Connor will be paid by
means of a Promissory Note for the balance due Connor, which shall be
in the principal amount of $3,598,910.06. It is further agreed that
such Promissory Note will be secured by the pledge of 422,011 shares of
the Stock. Connor and Buyer have agreed to the form of such Promissory
Note and of a Pledge Agreement to effect such pledge, both of which are
being executed and delivered as of the date hereof. The Promissory Note
and the Pledge Agreement address the matters originally addressed in
part in Articles II, IV and V of the Stock Purchase Agreement;
consequently, said Articles II, IV and V shall be superseded thereby
and are of no further force or effect. The terms set forth in Articles
VII and VIII of the Stock Purchase Agreement are also amended to
conform to the terms of the Promissory Note and the Pledge Agreement
and the terms of this Amendment.
4. It is agreed that, in the case of any shares of the Stock to be sold
under the Stock Purchase Agreement as amended hereby which are held by
a broker in "street name" for the account of the Seller Shareholder,
delivery of such shares may be made at the Closing by instructing the
broker to transfer such shares into an account held in the name of
Buyer (with the certificates for such shares to be subsequently
delivered to Buyer if Buyer so elects), except that any such shares
that are to be subject to the Pledge Agreement shall be delivered as
provided in the Pledge Agreement. Delivery of shares in such manner
shall be subject to appropriate confirmations reasonably satisfactory
to Buyer that such delivery is effective to transfer beneficial
ownership to Buyer free and clear of all liens, encumbrances, and
adverse claims.
5. Article VI of the Stock Purchase Agreement is hereby amended in its
entirety to provide as follows:
(a) Each of the Selling Shareholders hereby represents and warrants to
Buyer that, at the Closing, Buyer will acquire the shares of the Stock
being sold by such Selling Shareholder as set forth on Exhibit A free
and clear of all liens, encumbrances and adverse claims, other than (1)
in the case of the shares subject thereto, the Pledge Agreement in
favor of Connor and (2) restrictions on transfer imposed by applicable
securities laws. Each of the Selling Shareholders further represents
and warrants to Buyer that he, she or it agrees not to make any further
purchases of the Stock for a period of five (5) years after the date
hereof (or, in the case of Connor and any person or entity controlled
by him, during Connor's lifetime), other than purchases of Stock held
as security for the Note in the event it is sold upon a default
thereunder.
(b) Buyer hereby represents and warrants to each of the Selling
Shareholders that he is purchasing the shares of the Stock for
investment purposes and not with a view to or in connection with any
public resale thereof, and that he recognizes that Connor may be deemed
to be an "affiliate" of the Corporation and that, by reason thereof,
some or all of the Stock being purchased by him may be deemed to be
"restricted securities" as defined in Rule 144 under the federal
Securities Act of 1933, may be subject to a holding period prior to any
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public resale thereof pursuant to Rule 144, and may be required to be
held by him indefinitely, and that he will not dispose of such shares
in violation of the registration requirements of applicable federal or
state securities laws.
Except as expressly or by necessary implication amended hereby, the Stock
Purchase Agreement remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first above written.
BUYER:
/s/ Xxxxx X. Xxxxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxxxx, Xx.
SELLING SHAREHOLDERS:
/s/ Xxxxxxx X. Xxxxxx, Xx.
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Xxxxxxx X. Xxxxxx, Xx.
COUNTY-WIDE INSURANCE AGENCY, INC.
By /s/ Xxxxxxx X. Xxxxxx, Xx.
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Xxxxxxx X. Xxxxxx, Xx., President
/s/ Xxxxxxx X. Xxxxxx, III
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Xxxxxxx X. Xxxxxx, III
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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