<PAGE> 1
As filed with the Securities and Exchange Commission on August 4, 1998
Registration No. _________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------------------
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.)
6600 LBJ FREEWAY
SUITE 180
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
AS AMENDED AND RESTATED EFFECTIVE AS OF MAY 22, 1998(1)
(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.
6600 LBJ FREEWAY, SUITE 180 1717 MAIN STREET, SUITE 2800
DALLAS, TEXAS 75240 DALLAS, TEXAS 75201
(972) 774-0575
(Name, Address, and Telephone Number,
including Area Code, of Agent for Service)
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
PROPOSED PROPOSED
TITLE OF EACH CLASS AMOUNT MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(2) PER SHARE(3) OFFERING PRICE(3) FEE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par
value 475,000 $20.1875 $9,589,063 $2,828.78
====================================================================================================================
</TABLE>
(1) Of the 625,000 shares of Common Stock issuable under the Fresh America
Corp. 1996 Stock Option and Award Plan as Amended and Restated Effective as
of May 22, 1998, 150,000 shares were previously issued on the Registrant's
Registration Statement on Form S-8, dated September 5, 1997 (Commission
File Number 333-35019), for the original Fresh America Corp. 1996 Stock
Option and Award Plan.
(2) 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 as
Amended and Restated Effective May 22, 1998 become operative.
(3) 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 July 31, 1998, in
accordance with Rule 457(h) promulgated under the Securities Act of 1933,
as amended.
<PAGE> 2
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 2,
1998, 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 2, 1998.
(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 statement. Any
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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 July 31, 1998.
FRESH AMERICA CORP.
By: /s/ David I. Sheinfeld
------------------------------------
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, Steven 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
--------- ----- ----
<S> <C> <C>
/s/ David I. Sheinfeld Chairman of the Board July 31, 1998
- --------------------------------- and Chief Executive Officer
David I. Sheinfeld (Principal Executive Officer)
/s/ Robert C. Kiehnle Executive Vice President and July 31, 1998
- --------------------------------- Chief Financial Officer
Robert C. Kiehnle (Principal Financial and Accounting Officer)
/s/ Steven R. Grinstead Director July 31, 1998
- ---------------------------------
Steven R. Grinstead
/s/ Thomas M. Hubbard Director July 31, 1998
- ---------------------------------
Thomas M. Hubbard
/s/ Sheldon I. Stein Director July 31, 1998
- ---------------------------------
Sheldon I. Stein
/s/ Colon Washburn Director July 31, 1998
- ---------------------------------
Colon Washburn
/s/ Lawrence V. Jackson Director July 31, 1998
- ---------------------------------
Lawrence V. Jackson
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Exhibit Number Description
-------------- --------------------------------------------------
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 as Amended and Restated Effective May 22,
1998
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)
- ---------------------
* Filed herewith.
7
<PAGE> 1
EXHIBIT 4.3
FRESH AMERICA CORP.
1996 STOCK OPTION AND AWARD PLAN
AS AMENDED AND RESTATED
EFFECTIVE MAY 22, 1998
1. Purpose of the Plan. This Plan shall be known as the Fresh America
Corp. 1996 Stock Option and Award Plan as Amended and Restated Effective May 22,
1998. The purpose of the Plan is to attract and retain the best available
personnel for positions of substantial responsibility and to provide incentives
to such personnel to promote the success of the business of Fresh America Corp.
and its subsidiaries. This Plan replaces the Fresh America Corp. 1993 Stock
Option and Award Plan (the "Prior Plan"), which has been frozen as of the
effective date of this Plan. Options, stock appreciation rights, restricted
stock, or other stock rights granted under the Prior Plan before the effective
date of this Plan shall continue to be governed by the terms of the Prior Plan,
except to the extent specifically provided otherwise hereinafter, but no
additional options, restricted stock, or other stock rights shall be granted
under the Prior Plan after the effective date of this Plan.
Certain options granted under this Plan are intended to qualify as
"incentive stock options" pursuant to Section 422 of the Internal Revenue Code
of 1986, as amended from time to time, while certain other options granted under
the Plan will constitute nonqualified options.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Board" means the Board of Directors of the Corporation.
(b) "Common Stock" means the Common Stock, $.01 par value per
share, of the Corporation. Except as otherwise provided herein, all Common Stock
issued pursuant to the Plan shall have the same rights as all other issued and
outstanding shares of Common Stock, including but not limited to voting rights,
the right to dividends, if declared and paid, and the right to pro rata
distributions of the Corporation's assets in the event of liquidation.
(c) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(d) "Committee" means the committee described in Section 19 that
administers the Plan.
(e) "Corporation" means Fresh America Corp., a Texas corporation.
(f) "Date of Grant" means the date on which an Option is granted or
Restricted Stock is awarded pursuant to this Plan or, if the Board or the
Committee so
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determines, the date specified by the Board or the Committee as the
date the award is to be effective.
(g) "Employee" means any officer or other key employee of the
Corporation or one of its Subsidiaries (including any director who is also an
officer or key employee of the Corporation or one of its Subsidiaries).
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(i) "Executive" means an Employee who is, or in the judgment of the
Committee may become as of the date of the exercise of an Option, the Chief
Executive Officer of the Corporation or any of the other four highest
compensated officers of the Corporation.
(j) "Fair Market Value" means the closing sale price (or average of
the quoted closing bid and asked prices if there is no closing sale price
reported) of the Common Stock on the trading day immediately prior to the date
specified as reported by The Nasdaq Stock Market or by the principal national
stock exchange on which the Common Stock is then listed. If there is no reported
price information for the Common Stock, the Fair Market Value will be determined
by the Board or the Committee, in its sole discretion. In making such
determination, the Board or the Committee may, but shall not be obligated to,
commission and rely upon an independent appraisal of the Common Stock.
(k) "Immediate Family" means the children, grandchildren or spouse
of any Participant.
(l) "Non-Employee Director" means an individual who is a
"non-employee director" as defined in Rule 16b-3 under the Exchange Act and also
an "outside director" within the meaning of Treasury Regulation Section
1.162-27(e)(3).
(m) "Nonqualified Option" means any Option that is not a Qualified
Option.
(n) "Option" means a stock option granted pursuant to Section 6 of
this Plan.
(o) "Optionee" means any Employee or director who receives an
Option.
(p) "Original Plan" means the Fresh America Corp. 1996 Stock Option
and Award Plan, as amended by the First Amendment to the Fresh America Corp.
1996 Stock Option and Award Plan.
(q) "Participant" means an Employee or director who receives an
Option or Restricted Stock pursuant to this Plan.
(r) "Plan" means the Fresh America Corp. 1996 Stock Option and
Award Plan as Amended and Restated Effective May 22, 1998, as amended from time
to time.
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(s) "Qualified Option" means any Option that is intended to qualify
as an "incentive stock option" within the meaning of Section 422 of the Code.
(t) "Restricted Stock" means Common Stock awarded to an Employee or
director pursuant to Section 7 of this Plan.
(u) "Rule 16b-3" means Rule 16b-3 of the rules and regulations
under the Exchange Act, as Rule 16b-3 may be amended from time to time, and any
successor provisions to Rule 16b-3 under the Exchange Act.
(v) "Subsidiary" means any now existing or hereinafter organized or
acquired company of which more than fifty percent (50%) of the issued and
outstanding voting stock is owned or controlled directly or indirectly by the
Corporation or through one or more Subsidiaries of the Corporation.
3. Term of Plan. The Original Plan was adopted by the Board effective
as of July 12, 1996 and was approved by the shareholders of the Corporation on
June 19, 1997. The Plan was approved by the Board effective May 22, 1998. To
permit the granting of Qualified Options under the Code, and to qualify awards
of Options or Restricted Stock hereunder as "performance based" under Section
162(m) of the Code, the Plan will be submitted for approval by the shareholders
of the Corporation by the affirmative votes of the majority of the votes cast,
for approval no later than the next annual meeting of shareholders. If the Plan
is not so approved by the shareholders of the Corporation, then any Options
granted in excess of the 150,000 shares authorized under the Original Plan will
be Nonqualified Options, regardless of whether the option agreements relating
thereto purport to grant Qualified Options, and any such excess Options granted
to Executives will be void.
4. Shares Subject to the Plan. Except as otherwise provided in Section
18 hereof, the aggregate number of shares of Common Stock issuable upon the
exercise of Options or upon the grant of Restricted Stock pursuant to this Plan
shall be 625,000 shares. Such shares may either be authorized but unissued
shares or treasury shares. The Corporation shall, during the term of this Plan,
reserve and keep available a number of shares of Common Stock sufficient to
satisfy the requirements of the Plan. If an Option should expire or become
unexercisable for any reason without having been exercised in full, or
Restricted Stock should fail to vest and be forfeited in whole or in part for
any reason, then the shares that were subject thereto shall, unless the Plan has
terminated, be available for the grant of additional Options or Restricted Stock
under this Plan, subject to the limitations set forth above.
5. Eligibility. Qualified Options may be granted under Section 6 of
the Plan to such Employees of the Corporation or its Subsidiaries as may be
determined by the Board or the Committee. Nonqualified Options may be granted
under Section 6 of the Plan to such Employees and directors of the Corporation
or its Subsidiaries as may be determined by the Board or the Committee.
Restricted Stock may be granted under Section 7 of the Plan to such Employees
and directors of the Corporation or its Subsidiaries as may be determined by the
Board or the Committee. Subject to the limitations and qualifications set forth
in this Plan, the Board or the
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Committee shall also determine the number of Options or shares of Restricted
Stock to be granted, the number of shares subject to each Option or Restricted
Stock grant, the exercise price or prices of each Option, the vesting and
exercise period of each Option and the vesting and/or forfeiture provisions
relating to Restricted Stock, whether an Option may be exercised as to less than
all of the Common Stock subject thereto, and such other terms and conditions of
each Option or grant of Restricted Stock, if any, as are consistent with the
provisions of this Plan. In connection with the granting of Qualified Options,
the aggregate Fair Market Value (determined at the Date of Grant of a Qualified
Option) of the shares with respect to which Qualified Options are exercisable
for the first time by an Optionee during any calendar year (under all such plans
of the Optionee's employer corporation and its parent and subsidiary
corporations as defined in Section 424(e) and (f) of the Code, or a corporation
or a parent or subsidiary corporation of such corporation issuing or assuming an
Option in a transaction to which Section 424(a) of the Code applies
(collectively, such corporations described in this sentence are hereinafter
referred to as "Related Corporations")) shall not exceed $100,000 or such other
amount as from time to time provided in Section 422(d) of the Code or any
successor provision. In the event that the Participant's total Qualified Options
exceed the $100,000 limit in any calendar year (whether due to acceleration of
exercisability, miscalculation, error or otherwise) the amount of Qualified
Options that exceed such limit shall be treated as Nonqualified Options. The
Qualified Options granted earliest (whether under this Plan or any other
agreement or plan) shall be applied first to the $100,000 limit. In the event
that only a portion of the Qualified Options granted at the same time can be
applied to the $100,000 limit, the Corporation shall issue separate share
certificates for such number of shares as does not exceed the $100,000 limit,
and shall designate such shares as Qualified Option stock in its share transfer
records.
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 with respect to which
Options may be granted to any single Executive in any one year shall not exceed
625,000. Solely for this purpose, Options that lapse or are canceled continue to
count against such limit.
Unless the Board or the Committee determines otherwise with
respect to a particular year, each Non-Employee Director will automatically be
granted a Nonqualified Option to purchase 5,000 shares of Common Stock (subject
to adjustment pursuant to Section 18 hereof), at an exercise price equal to the
Fair Market Value of the Common Stock on the Date of Grant, on August 8 of each
year.
7. Restricted Stock. Except as provided in Section 19(d), the Board or
the Committee shall determine the number of shares of Common Stock to be granted
as Restricted Stock from time to time under the Plan. The grant of Restricted
Stock shall be evidenced by
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Restricted Stock 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.
8. Time of Grant of Options. The date of grant of an Option or
Restricted Stock under the Plan shall be the date on which the Board or the
Committee awards the Option or Restricted Stock or, if the Board or the
Committee so determines, the date specified by the Board or the Committee as the
date the award is to be effective. Notice of the grant shall be given to each
Participant to whom an Option or Restricted Stock is granted promptly after the
date of such grant.
9. Price. The exercise price for each share of Common Stock subject to
an Option (the "Exercise Price") granted pursuant to Section 6 of the Plan shall
be determined by the Board or the Committee at the Date of Grant; provided,
however, that (a) the Exercise Price for any Option shall not be less than 100%
of the Fair Market Value of the Common Stock at the Date of Grant, and (b) if
the Optionee owns on the Date of Grant more than 10 percent of the total
combined voting power of all classes of stock of the Corporation or its parent
or any of its subsidiaries, as more fully described in Section 422(b)(6) of the
Code or any successor provision (such shareholder is referred to herein as a
"10-Percent Shareholder"), the Exercise Price for any Qualified Option granted
to such Optionee shall not be less than 110% of the Fair Market Value of the
Common Stock at the Date of Grant. The Board or the Committee in its discretion
may award shares of Restricted Stock under Section 7 of the Plan to Participants
without requiring the payment of cash consideration for such shares.
10. Vesting. Subject to Section 12 of this Plan, each Option and
Restricted Stock award under the Plan shall vest or be subject to forfeiture in
accordance with the provisions set forth in the applicable Option agreement or
Restricted Stock agreement. The Board or the Committee may, but shall not be
required to, permit acceleration of vesting or termination of forfeiture
provisions upon any sale of the Corporation or similar transaction. A
Participant's Option or Restricted Stock agreement may contain such additional
provisions with respect to vesting as the Board or the Committee may specify.
11. Exercise. A Participant may pay the Exercise Price of the shares of
Common Stock as to which an Option is being exercised by the delivery of cash,
check or, at the Corporation's option, by the delivery of shares of Common Stock
having a Fair Market Value on the date immediately preceding the exercise date
equal to the Exercise Price. If Participant-owned Common Stock is used to pay
the purchase price, the Common Stock used must have been held by the Participant
for at least six months prior to the date of exercise. Payments made in Common
Stock shall be made by tendering to the Company shares owned by the Participant
having an aggregate Fair Market Value on the date immediately preceding the
exercise date that is not greater than the aggregate Exercise Price for the
shares as to which the Option is being exercised and by paying any remaining
amount of such exercise price by check. The Board or the Committee may, in its
discretion, authorize a constructive exchange of existing shares, as follows:
the Participant may exercise the option by delivering a notarized statement that
the Participant has owned for at least six months the number of shares of Common
Stock to be used for payment of the exercise of the Option (and delivering cash,
to the extent the value of such shares is less than
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<PAGE> 6
the aggregate Exercise Price), and thereupon, a new certificate shall be issued
to the Participant for the number of shares being acquired pursuant to the
exercise of the Option, less the number of shares being constructively tendered
as set forth in the Participant's notarized statement.
If the shares to be purchased are covered by an effective registration
statement under the Securities Act of 1933, as amended, any Option granted under
the Plan may be exercised by a broker-dealer acting on behalf of an Optionee if
(a) the broker-dealer has received from the Optionee or the Corporation a fully-
and duly-endorsed agreement evidencing such Option, together with instructions
signed by the Optionee requesting the Corporation to deliver the shares of
Common Stock subject to such Option to the broker-dealer on behalf of the
Optionee and specifying the account into which such shares should be deposited,
(b) adequate provision has been made with respect to the payment of any
withholding taxes due upon such exercise, and (c) the broker-dealer and the
Optionee have otherwise complied with Section 220.3(e)(4) of Regulation T, 12
CFR Part 220, or any successor provision.
12. When Qualified Options May be Exercised. No Qualified Option shall
be exercisable at any time after the expiration of ten (10) years from the Date
of Grant; provided, however, that if the Optionee with respect to a Qualified
Option is a 10-Percent Shareholder on the Date of Grant of such Qualified
Option, then such Option shall not be exercisable after the expiration of five
(5) years from its Date of Grant. In addition, if an Optionee of a Qualified
Option ceases to be an employee of the Corporation or any Related Corporation
for any reason, such Optionee's vested Qualified Options shall not be
exercisable after (a) three months following the date such Optionee ceases to be
an employee of the Corporation or any Related Corporation, if such cessation of
service is not due to the death or permanent and total disability (within the
meaning of Section 22(e)(3) of the Code) of the Optionee, or (b) twelve months
following the date such Optionee ceases to be an employee of the Corporation or
any Related Corporation, if such cessation of service is due to the death or
permanent and total disability (as defined above) of the Optionee. Upon the
death of an Optionee, any vested Qualified Option exercisable on the date of
death may be exercised by the Optionee's estate or by a person who acquires the
right to exercise such Qualified Option by bequest or inheritance or by reason
of the death of the Optionee, provided that such exercise occurs within both the
remaining option term of the Qualified Option and twelve months after the date
of the Optionee's death. This Section 12 only provides the outer limits of
allowable exercise dates with respect to Qualified Options; the Board or the
Committee may determine that the exercise period for a Qualified Option shall
have a shorter duration than as specified above.
13. Option Financing. Upon the exercise of any Option granted under the
Plan, the Corporation may, but shall not be required to, make financing
available to the Participant for the purchase of shares of Common Stock pursuant
to such Option on such terms as the Board or the Committee may specify.
14. Withholding of Taxes. The Board or the Committee shall make such
provisions and take such steps as it may deem necessary or appropriate for the
withholding of any taxes that the Corporation is required by any law or
regulation of any governmental authority to withhold in connection with any
Option or Restricted Stock including, but not limited to, withholding the
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<PAGE> 7
issuance of all or any portion of the shares of Common Stock subject to such
Option or Restricted Stock until the Participant reimburses the Corporation for
the amount it is required to withhold with respect to such taxes, canceling any
portion of such issuance in an amount sufficient to reimburse the Corporation
for the amount it is required to withhold or taking any other action reasonably
required to satisfy the Corporation's withholding obligation.
15. Conditions Upon Issuance of Shares. The Corporation shall not be
obligated to sell or issue any shares upon the exercise of any Option granted
under the Plan or to deliver Restricted Stock unless the issuance and delivery
of shares complies with all provisions of applicable federal and state
securities laws and the requirements of The Nasdaq Stock Market or any other
stock exchange upon which shares of the Common Stock may then be listed.
As a condition to the exercise of an Option or the grant of
Restricted Stock, the Corporation may require the person exercising the Option
or receiving the grant of Restricted Stock to make such representations and
warranties as may be necessary to assure the availability of an exemption from
the registration requirements of applicable federal and state securities laws.
The Corporation shall not be liable for refusing to sell or issue
any shares covered by any Option or for refusing to issue Restricted Stock if
the Corporation cannot obtain authority from the appropriate regulatory bodies
deemed by the Corporation to be necessary to sell or issue such shares in
compliance with all applicable federal and state securities laws and the
requirements of The Nasdaq Stock market or any other stock exchange upon which
shares of the Common Stock may then be listed. In addition, the Corporation
shall have no obligation to any Participant, express or implied, to list,
register or otherwise qualify the shares of Common Stock covered by any Option
or Restricted Stock.
No Participant will be, or will be deemed to be, a holder of any
Common Stock subject to an Option unless and until such Participant has
exercised his or her Option and paid the purchase price for the subject shares
of Common Stock.
16. Restrictions on Shares; Transferability of Options. Shares of
Common Stock issued pursuant to the Plan may be subject to restrictions on
transfer under applicable federal and state securities laws. Each Qualified
Option under this Plan shall be transferable only by will or the laws of descent
and distribution and shall be exercisable during the Participant's lifetime only
by such Participant. Each nonqualified Option under this Plan shall be
transferable only by will, the laws of descent and distribution or pursuant to a
domestic relations order issued by a court of competent jurisdiction.
Notwithstanding the foregoing, the Board or the Committee may, in its discretion
and as evidenced in the related nonqualified Option agreement, grant a
nonqualified Option to a Participant on terms that permit the Participant to
transfer such nonqualified Option to members of his or her Immediate Family
members, or to one or more partnerships or trusts where such Immediate Family
members are the only partners or beneficiaries (i) the related nonqualified
Option agreement also expressly provides that the Option may be transferred only
with the express written consent of the Board or the Committee, and (ii) the
Participant does not receive any consideration in any form whatsoever for the
transfer. Any nonqualified Option so transferred shall continue to be subject to
the same terms and conditions in the hands of the
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transferee as were applicable to said nonqualified Option immediately prior to
the transfer thereof. The Board may impose such additional restrictions on the
ownership and transfer of shares of Common Stock issued pursuant to the Plan as
it deems desirable; any such restrictions shall be set forth in any Option
agreement entered into hereunder.
17. Modification of 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 4 or 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.
18. Effect of Change in Stock Subject to the Plan. In the event
that each of the outstanding shares of Common Stock (other than shares held by
dissenting shareholders) shall be changed into or exchanged for a different
number or kind of shares of stock of the Corporation or of another corporation
(whether by reason of merger, consolidation, recapitalization, reclassification,
split-up, combination of shares or otherwise), or in the event a stock split or
stock dividend occurs, then there shall be substituted for each share of Common
Stock then subject to Options or Restricted Stock awards or available for
Options or Restricted Stock awards the number and kind of shares of stock into
which each outstanding share of Common Stock (other than shares held by
dissenting shareholders) shall be so changed or exchanged, or the number of
shares of Common Stock as is equitably required in the event of a stock split or
stock dividend, together with an appropriate adjustment of the Exercise Price.
The Board may, but shall not be required to, provide additional anti-dilution
protection to a Participant under the terms of the Participant's Option or
Restricted Stock agreement.
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; provided, however, that the
Committee shall have exclusive authority over grants of Options and Restricted
Stock awards to the Executives of the Company. Option agreements and Restricted
Stock
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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.
(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.
20. Continued Employment Not Presumed. Nothing in this Plan or any
document describing it nor the grant of any Option or Restricted Stock shall
give any Participant the right to continue in the employment of the Corporation
or affect the right of the Corporation to terminate the employment of any such
person with or without cause.
21. Liability of the Corporation. Neither the Corporation, its
directors, officers or employees or the Committee, nor any Subsidiary which is
in existence or hereafter comes into existence, shall be liable to any
Participant or other person if it is determined for any reason by the Internal
Revenue Service or any court having jurisdiction that any Qualified Option
granted hereunder does not qualify for tax treatment as an incentive stock
option under Section 422 of the Code.
22. GOVERNING LAW. THE PLAN SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF STATE OF TEXAS AND THE UNITED STATES, AS APPLICABLE,
WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
23. Severability of Provisions. If any provision of this Plan is
determined to be invalid, illegal or unenforceable, such invalidity, illegality
or unenforceability shall not affect the remaining
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provisions of the Plan, but such invalid, illegal or unenforceable provision
shall be fully severable, and the Plan shall be construed and enforced as if
such provision had never been inserted herein.
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EXHIBIT 5.1
August 4, 1998
Fresh America Corp.
6600 LBJ Freeway
Suite 180
Dallas, Texas 75240
Re: Registration Statement on Form S-8 for the Fresh America Corp.
1996 Stock Option and Award Plan as Amended and Restated
Effective May 22, 1998
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 475,000 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 as Amended and Restated Effective
May 22, 1998 (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 August 4, 1998 (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.
<PAGE> 2
We consent to the use of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not admit that we are included in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
HUGHES & LUCE, L.L.P.
<PAGE> 1
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
Dallas, Texas
August 3, 1998
