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As filed with the Securities and Exchange Commission on September 5, 1997
Registration No. ____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
FRESH AMERICA CORP.
(Exact Name of Registrant as Specified in Its Charter)
TEXAS 76-0281274
- ------------------------------- -------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
ONE LINCOLN CENTRE
5400 LBJ FREEWAY
SUITE 1025
DALLAS, TEXAS 75240
(972) 774-0575
(Address, including Zip Code, and Telephone Number, including Area
Code, of Registrant's Principal Executive Offices)
FRESH AMERICA CORP.
1996 STOCK OPTION AND AWARD PLAN
(Full Title of Plan)
DAVID I. SHEINFELD COPY TO:
CHAIRMAN OF THE BOARD ALAN J. BOGDANOW, ESQ.
FRESH AMERICA CORP. HUGHES & LUCE, L.L.P.
ONE LINCOLN CENTRE 1717 MAIN STREET, SUITE 2800
5400 LBJ FREEWAY, SUITE 1025 DALLAS, TEXAS 75201
DALLAS, TEXAS 75240
(972) 774-0575
(Name, Address, and Telephone Number,
including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
TITLE OF EACH CLASS AMOUNT MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01
par value 150,000 $18.375 $2,756,250 $835.23
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</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate number
of shares of Common Stock that may be issued if certain anti-dilution
provisions of the Fresh America Corp. 1996 Stock Option and Award Plan
become operative.
(2) Estimated solely for the purpose of calculating the registration fee on
the basis of the average of the high and low price paid per share of
Common Stock, as reported on the Nasdaq National Market on September 3,
1997, in accordance with Rule 457(h) promulgated under the Securities Act
of 1933, as amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and Exchange
Commission (the "Commission") by Fresh America Corp. (the "Registrant") are
incorporated by reference in this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended January 3, 1997,
which contains audited financial statements of the Registrant for the
Registrant's last completed fiscal year for which such statements have been
filed.
(b) All reports filed by the Registrant pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since January 3, 1997.
(c) The description of the Registrant's Common Stock set forth in the
Registrant's Registration Statement on Form 8-A, dated May 12, 1994 (Commission
File Number 0-24124), including any amendment or report filed for the purpose
of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that
all of the shares of Common Stock offered have been sold or which deregisters
all of such shares then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents (such documents, and the documents enumerated
above, being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such
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statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Texas Business Corporation Act ("TBCA"), the
Registrant's Bylaws provide that the directors and officers of the Registrant
will be indemnified by the Registrant against certain liabilities that those
persons may incur in their capacities as directors or officers. Furthermore,
the Registrant's Restated Articles of Incorporation eliminate the liability of
directors of the Registrant to the maximum extent permitted by the TBCA.
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act of 1933, as amended (the "Securities Act"), may be permitted
to directors, officers, or persons controlling the Registrant pursuant to the
foregoing provisions, the Registrant has been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on page 7 of this Registration Statement, which Index is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
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(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The Registrant hereby undertakes that for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification by the Registrant for liabilities arising
under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described in
Item 6, or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification by the Registrant against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Dallas, Texas, on September 5, 1997.
FRESH AMERICA CORP.
By: /s/ DAVID I. SHEINFELD
-------------------------
Chairman of the Board
and Chief Executive Officer
(Principal Executive Officer)
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POWER OF ATTORNEY
We, the undersigned officers and directors of Fresh America Corp., hereby
severally constitute and appoint David I. Sheinfeld, Steve R. Grinstead and
Robert C. Kiehnle and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all amendments (including post-effective amendments) to
the Registration Statement, and generally to do all things in our name and
behalf in the capacities indicated below to enable Fresh America Corp. to
comply with the provisions of the Securities Act of 1933, as amended, and all
requirements to the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ David I. Sheinfeld Chairman of the Board September 5, 1997
- ---------------------- and Chief Executive Officer
David I. Sheinfeld (Principal Executive Officer)
/s/ Robert C. Kiehnle Executive Vice President and September 5, 1997
- ---------------------- Chief Financial Officer
Robert C. Kiehnle (Principal Financial and
Accounting Officer)
/s/ Steve R. Grinstead Director September 5, 1997
- ----------------------
Steve R. Grinstead
/s/ Thomas M. Hubbard Director September 5, 1997
- ----------------------
Thomas M. Hubbard
/s/ Sheldon I. Stein Director September 5, 1997
- ----------------------
Sheldon I. Stein
Director September 5, 1997
- ----------------------
Colon Washburn
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Exhibit Number Description
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<S> <C>
4.1 Restated Articles of Incorporation of the Registrant, filed as
Exhibit 3.1 to the Registration Statement on Form S-1 (No.
33-77620) and incorporated herein by reference.
4.2 Amended and Restated Bylaws of the Registrant, filed as Exhibit
3.2 to the Registration Statement on Form S-1 (No. 33-77620)
and incorporated herein by reference.
4.3 Fresh America Corp. 1996 Stock Option and Award Plan, filed as
Exhibit 10.1 to the Registrant's Form 10-Q for the quarterly
period ended September 27, 1996 and incorporated herein by
reference.
4.4* First Amendment to Fresh America Corp. 1996 Stock Option and
Award Plan.
5.1* Opinion of Hughes & Luce, L.L.P.
23.1 Consent of Hughes & Luce, L.L.P. (contained in Exhibit 5.1)
23.2* Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (contained at page II-6)
</TABLE>
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* Filed herewith.
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EXHIBIT 4.4
FIRST AMENDMENT
TO
FRESH AMERICA CORP.
1996 STOCK OPTION AND AWARD PLAN
Fresh America Corp., a Texas corporation (the "Corporation"), previously
established the Fresh America Corp. 1996 Stock Option and Award Plan (the
"Plan").
Fresh America Corp. desires to amend the Plan effective as of April 30,
1997 as hereinafter set forth.
1. AMENDMENTS TO THE PLAN. The Plan is hereby amended as follows:
a. Definitions. Section 2, "Definitions," is hereby amended by adding
thereto the definition of "Executive" to read in its entirety as
follows:
"'Executive' means the Chief Executive Officer of the
Corporation and the other four highest compensated officers of
the Corporation."
b. Term of Plan. Section 3, "Term of Plan," is hereby amended by
deleting the third sentence therein in its entirety and inserting the
following in lieu thereof:
"If the Plan is not so approved by the shareholders of the
Corporation, then any Options previously granted under the Plan
will be Nonqualified Options, regardless of whether the option
agreements relating thereto purport to grant Qualified Options,
and any Options granted to Executives will be void."
c. Grant of Options. Section 6, "Grant of Options," is hereby deleted in
its entirety and the following is inserted in lieu thereof:
"6. Grant of Options. Except as provided in Section 19(c), the Board
or the Committee shall determine the number of shares of Common
Stock to be offered from time to time pursuant to Options
granted hereunder and shall grant Options under the Plan.
Notwithstanding the foregoing, the Committee shall have the
exclusive authority to grant Options to Executives. The grant of
Options shall be evidenced by Option agreements containing such
terms and provisions as are approved by the Board or the
Committee and executed on behalf of the Corporation by an
appropriate officer. In connection with the granting of any
Options under the Plan, the aggregate number of shares of Common
Stock
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with respect to which Options may be granted to any single
Executive in any one year shall not exceed the number of shares
subject to the Plan referred to in Section 4. Solely for this
purpose, Options that lapse or are cancelled continue to count
against such limit."
d. When Qualified Options May be Exercised. Section 12, "When Qualified
Options May be Exercised is hereby amended by deleting the reference
therein to "90 days" in its entirety and inserting "three months" in
lieu thereof.
e. Modifications of Plan and Options. Section 17 of the Plan,
"Modification of Options," is hereby deleted in its entirety and the
following inserted in lieu thereof:
"17. Modification of Plan and Options.
(a) The Board or the Committee may from time to time and at any
time alter, amend, suspend, discontinue or terminate this
Plan; provided, however, that no such action of the Board
or Committee may, without the approval of the shareholders
of the Corporation, alter the provisions of the Plan so as
to (i) increase the maximum number of shares of Common
Stock that may be subject to this Plan (except as provided
in Section 18 of this Plan), (ii) change the class of
employees eligible to participate in this Plan, or (iii)
change the annual limit on the number of Options granted to
an Executive in Section 6 above.
(b) Except as provided in Section 19(c) of this Plan, at any
time and from time to time, the Board or the Committee may
execute an instrument providing for modification, extension
or renewal of any outstanding Option, provided that no such
modification, extension or renewal shall impair the Option
without the consent of the holder of the Option.
Notwithstanding the foregoing, in the event of such a
modification, substitution, extension or renewal of a
Qualified Option, the Board or the Committee may increase
the exercise price of such Option if necessary to retain
the qualified status of such Option."
f. Administration. Section 19, "Administration," is hereby deleted in
its entirety and the following inserted in lieu thereof:
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"19. Administration.
(a) The Plan shall be administered by the Board or by a
committee comprised solely of two or more Non-Employee
Directors appointed by the Board (the "Committee"). Options
and Restricted Stock may be granted under Sections 6 and 7,
respectively, only (i) by the Board as a whole, or (ii) by
majority agreement of the members of the Committee. Option
agreements and Restricted Stock agreements, in the forms as
approved by the Board or the Committee, and containing such
terms and conditions consistent with the provisions of this
Plan as are determined by the Board or the Committee, may
be executed on behalf of the Corporation by the Chairman of
the Board, the President or any Vice President of the
Corporation. The Board or the Committee shall have complete
authority to construe, interpret and administer the
provisions of this Plan and the provisions of the Option
agreements and Restricted Stock agreements granted
hereunder; to prescribe, amend and rescind rules and
regulations pertaining to this Plan; to suspend,
discontinue or terminate this Plan; and to make all other
determinations necessary or deemed advisable in the
administration of the Plan. The determinations,
interpretations and constructions made by the Board or the
Committee shall be final and conclusive. No member of the
Board or the Committee shall be liable for any action
taken, or failed to be taken, made in good faith relating
to the Plan or any award thereunder, and the members of the
Board or the Committee shall be entitled to indemnification
and reimbursement by the Corporation in respect of any
claim, loss, damage or expense (including attorneys' fees)
arising therefrom to the fullest extent permitted by law.
(b) Members of the Committee shall be specified by the Board,
and shall consist solely of Non-Employee Directors.
Non-Employee Directors may not possess an interest in any
transaction for which disclosure is required under Section
404(a) of Regulation S-K under the Exchange Act or be
engaged in a business relationship that must be disclosed
under Section 404(a) and must qualify as 'outside
directors' as defined in Section 162(m) of the Code and
regulations thereunder.
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(c) Although the Board or the Committee may suspend,
discontinue or terminate the Plan at any time, all
Qualified Options must be granted within ten (10) years
from the effective date of the Plan or the date the Plan is
approved by the shareholders of the Corporation, whichever
is earlier."
2. RATIFICATION. Except as modified hereby, the terms of the Plan are in full
force and effect.
FRESH AMERICA CORP.
By: /s/ David I. Sheinfeld
-----------------------------------
David I. Sheinfeld, Chairman of the
Board and Chief Executive Officer
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EXHIBIT 5.1
September 5, 1997
Fresh America Corp.
One Lincoln Centre
5400 LBJ Freeway
Suite 1025
Dallas, Texas 75240
Re: Registration Statement on Form S-8 for the Fresh
America Corp. 1996 Stock Option and Award Plan
Ladies and Gentlemen:
We have acted as special counsel to Fresh America Corp., a Texas
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of 150,000 shares (the "Shares") of the
Company's common stock, $.01 par value per share, issuable under the Fresh
America Corp. 1996 Stock Option and Award Plan (the "Plan"). The Shares are
being registered pursuant to a registration statement on Form S-8 to be filed
with the Securities and Exchange Commission on or about September 5, 1997 (the
"Registration Statement").
In connection with this opinion, we have examined such documents and
records of the Company and such statutes, regulations and other instruments and
certificates as we have deemed necessary or advisable for the purposes of this
opinion. We have assumed that all signatures on all documents presented to us
are genuine, that all documents submitted to us as originals are accurate and
complete and that all documents submitted to us as copies are true and correct
copies of the originals thereof. We have also relied upon such certificates of
public officials, corporate agents and officers of the Company and such other
certifications with respect to the accuracy of material factual matters
contained therein which were not independently established.
Based on the foregoing, we are of the opinion that the Shares will be, if
and when issued and paid for pursuant to the Plan, validly issued, fully paid
and nonassessable, assuming the Company maintains an adequate number of
authorized but unissued shares of common stock available for such issuance, and
further assuming that the consideration received by the Company for the Shares
exceeds the par value thereof.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
HUGHES & LUCE, L.L.P.
A Registered Limited Liability Partnership Including Professional Corporations
Hughes & Luce, L.L.P.
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EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
Fresh America Corp.
We consent to the use of our report incorporated herein by reference.
KPMG PEAT MARWICK LLP
Houston, Texas
September 3, 1997
