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Xxxxxxx 00.00
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made and entered into as
of the 11th day of February, 2000, by and between Xxxx X. Xxxxxx, Xx., 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 10,731 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 10,731
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 $85,848.00
(the "Purchase Price"), to be payable as follows:
1.1 Cash Payment at Closing. Buyer shall deliver the sum of
Forty-Two Thousand Nine Hundred Twenty-Four Dollars
($42,924.00) 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 entire
outstanding principal balance and any interest accrued thereon
shall be due and payable no later than two (2) years from the
date of the Closing, on or before January 31, 2002. There
shall be no prepayment penalty for early payment of all or any
part of the amount due. However, ii substantially all of the
assets of Fresh Foods, Inc., or substantially all of the
voting stock of Fresh Foods, Inc.. are sold to a party
unrelated to Xxxxx
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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,
5,366 shares 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 $42,924.00, 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 11, 2000 (the "Closing") 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 stock that
is not subject to the Pledge Agreement and assign the indebtedness evidenced by
the Promissory Note set forth in Paragraph 1.2 hereinabove, provided that Xxxxx
X. Xxxxxxxxxx, Xx., remains as a Guarantor of
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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 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 three
months
ARTICLE VII.
DELIVERIES BY SELLER AT CLOSING
At the Closing, Seller shall deliver the following documents and
instruments:
(a) All stock certificates representing 10,731 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 VIII
DELIVERIES BY BUYER AT CLOSING
At the Closing, Buyer shall deliver the following:
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(a) The sum of Forty-Two Thousand Nine Hundred Twenty-Four Dollars
($42,924.00) 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 films and administration 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 "Xxxxxx 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 Xxxxxx 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 until
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,
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transferred or conveyed in any manner all or any part 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
warrant 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 wan-ants 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.
(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 legal 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 consumed 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 X. Xxxxxx, Xx. (SEAL)
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Xxxx X. Xxxxxx, Xx.
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 purpose of Article XI and for
no other purpose.
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