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EXHIBIT 10.46
Agreement dated December 21, 1999 between Fresh Foods, Inc., a North
Carolina corporation (the "Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇").
For good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged by each party, and in consideration of the mutual
covenants contained herein, the parties hereto agree as follows:
1. Reference is made to the form of Agreement between the parties
identified as "Solmaz Agreement 3" in its footer (the "Solmaz Agreement"). The
parties agree to execute the following process as soon as commercially
reasonable and in no event later than 6:00 P.M., Charlotte time, on January 31,
2000 (the "Outside Closing Time"):
o Solmaz will tender for delivery to the Company certificates
representing all (68,024) shares of common stock issued by the
Company and beneficially owned by Solmaz and the Solmaz Entities
at the date hereof.
o Solmaz will tender or cause to be tendered a stock power or
powers, in customary form, to be delivered to the Company
together with such certificates, thereby transferring beneficial
ownership and (subject to recording by the transfer agent) record
ownership of all such shares to the Company.
o Solmaz will execute an undated counterpart of the Solmaz
Agreement and tender it for delivery to the Company.
o The Company will execute an undated counterpart of the Solmaz
Agreement and tender it for delivery to Solmaz.
o The Company will cause to be tendered for delivery to Solmaz, by
wire transfer to an account identified by Solmaz, by bank check
or by other check drawn on a trust account of McGuire, Woods,
Battle & ▇▇▇▇▇▇ LLP (as the Company may elect), $1,020,360.00.
2. All tenders shall be made concurrently with one another to the
extent practicable. All deliveries shall be deemed to have been made
concurrently with one another. The Solmaz Agreement, when executed and delivered
by the parties, shall be dated the date of the payment referred to above.
Failure by one party to make all tenders by the Outside Closing Time shall
constitute a material breach of this Agreement and, among other remedies (as
provided by law and equity), shall excuse the other party from its obligations
hereunder.
3. Each party covenants and agrees with the other not to disclose the
existence or terms of this Agreement to any person at any time for any purpose,
except that (a) either party may make such disclosures confidentially to the
party's lawyers and accountants in connection with the rendition of their
professional services and (b) the Company may make such disclosures as it deems
to be required by applicable securities laws.
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4. This Agreement evidences the entire agreement among the parties and
their privies relative to the subject matter covered hereby, and it supersedes
all prior or contemporaneous oral or written agreements among any or all of
them. This Agreement cannot be amended or otherwise modified, nor can
noncompliance with its terms be waived, except pursuant to a subsequent writing
signed by the party or privy sought to be charged with the amendment,
modification or waiver. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina (without regard to the
principles of conflict of laws thereof). This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their successors, heirs and
assigns. This Agreement may be executed in counterparts, each of which shall
constitute an original and all of which, taken together, shall constitute one
and the same Agreement.
FRESH FOODS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice Chairman
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
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Agreement dated ______________, ____ between Fresh Foods, Inc., a North
Carolina corporation (the "Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇").
For good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged by each party, and in consideration of the mutual
covenants contained herein, the parties hereto agree as follows:
1. For his affiliates, related parties, heirs, assigns, agents,
servants and representatives (the "Solmaz Entities"), as well as himself, Solmaz
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 the Company (the
"Company Entities"), and the Company itself, from any and all claims, demands,
actions, rights, causes of action, obligations and liabilities, known and
unknown (collectively, "Claims"), that he or any of the Solmaz Entities has or
may have against the Company or any of the Company Entities from the beginning
of time until the date of this Agreement. Without limiting the generality of the
foregoing, Solmaz also releases and forever discharges and acquits the Company
and the Company Entities, on his own behalf and on behalf of the Solmaz
Entities, from 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. Solmaz represents and warrants to the Company that neither he nor
any of the Solmaz Entities has assigned, transferred or conveyed in any manner
all, or any part, of his or its Claims against the Company or any of the Company
Entities. Solmaz further represents and warrants to the Company that this
Agreement is the legal, valid and binding obligation of himself and the Solmaz
Entities, enforceable against each of them in accordance with its terms.
2. The Company does hereby release and forever discharge and acquit
Solmaz and the Solmaz Entities from any and all Claims that the Company has or
may have against Solmaz or any of the Solmaz Entities from the beginning of time
until the date of this Agreement. The Company represents and warrants to Solmaz
that none of the Company Entities has any Claim against Solmaz or any of the
Solmaz Entities and that neither the Company nor any of the Company Entities has
assigned, transferred or conveyed in any manner all, or any part, of any Claim
against Solmaz or any of the Solmaz Entities. The Company further represents and
warrants to Solmaz that this Agreement is the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
3. Solmaz represents and warrants to the Company that neither he nor
any of the Solmaz Entities beneficially owns any shares of common stock or other
securities issued by the Company. Solmaz covenants and agrees with the Company
that neither he nor any of the Solmaz Entities will at any time hereafter
purchase or otherwise acquire (so as to beneficially own) any security issued by
the Company.
4. As used in this Agreement: (a) a person's "affiliate" is a second
person controlled, directly or indirectly, by the first person; (b) a person's
"related party" is a second person related (by blood or marriage) to the first
person, a trust as to which the
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first person was or is a settlor, trustee or beneficiary or a corporation,
partnership or other company as to which the first person was or is a
shareholder, partner, member, officer, director or manager; and (c) the term
"beneficially owns" derives its meaning from Rule 13d-3 under the Securities
Exchange Act of 1934, as amended.
5. Each party covenants and agrees with the other not to disclose the
existence or terms of this Agreement to any person at any time for any purpose,
except that (a) either party may make such disclosures confidentially to the
party's lawyers and accountants in connection with the rendition of their
professional services and (b) the Company may make such disclosures as it deems
to be required by applicable securities laws. Each party represents and
warrants to the other that the one party knows of no unlawful conduct by the
other. Each party covenants and agrees with the other not to disparage the
reputation of the other.
6. This Agreement evidences the entire agreement among the parties and
their privies relative to the subject matter covered hereby, and it supersedes
all prior or contemporaneous oral or written agreements among any or all of
them. This Agreement cannot be amended or otherwise modified, nor can
noncompliance with its terms be waived, except pursuant to a subsequent writing
signed by the party or privy sought to be charged with the amendment,
modification or waiver. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina (without regard to the
principles of conflict of laws thereof). This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their successors, heirs and
assigns. This Agreement may be executed in counterparts, each of which shall
constitute an original and all of which, taken together, shall constitute one
and the same Agreement.
FRESH FOODS, INC.
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice Chairman
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▇▇▇▇▇▇ ▇▇▇▇▇▇,
on behalf of himself
and the Solmaz Entities