<PAGE> 1
As filed with the Securities and Exchange Commission on April 30, 1998.
Registration No. 333-______
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-3
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 (I.R.S. Employer
of 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)
---------------
David I. Sheinfeld COPIES TO:
Chairman of the Board and Alan J. Bogdanow
Chief Executive Officer Hughes & Luce, L.L.P.
6600 LBJ Freeway 1717 Main Street
Suite 180 Suite 2800
Dallas, Texas 75240 Dallas, Texas 75201
(972) 774-0575 (214) 939-5500
(Name, address, and telephone number,
including area code, of agent for service)
---------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: |_|
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| ________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
TITLE OF SHARES AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED TO BE AGGREGATE PRICE AGGREGATE REGISTRATION
REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 937,875 $22.875 (2) $21,453,891 (2) $6,329
=====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Calculated pursuant to Rule 457(c) of the Securities Act of 1933, as
amended, based upon the high and low price per share of Fresh America Corp.
on April 27, 1998, as reported by the Nasdaq Stock Market's National
Market.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BE COME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
FRESH AMERICA CORP.
937,875 SHARES
COMMON STOCK
------------------------------------
This Prospectus relates to an offering of up to 937,875 shares of
common stock, par value $.01 per share (the "Common Stock"), of Fresh America
Corp., a Texas corporation (the "Company" or "Fresh America").
The Common Stock being registered is being offered for resale for the
account of certain selling shareholders (the "Selling Shareholders") identified
under the caption "Selling Shareholders." The shares underlying this offering
have already been issued to the Selling Shareholders, or will have been issued
to the Selling Shareholders prior to their sale pursuant to this Prospectus.
This offering is not part of the original issuance of the shares of Common
Stock, and the Company will not receive any proceeds from the sale of shares of
Common Stock offered hereby. The shares may be offered in transactions on the
Nasdaq Stock Market's National Market ("Nasdaq"), in negotiated transactions, or
through a combination of such methods of distribution, at prices relating to the
prevailing market prices or at negotiated prices. See "Plan of Distribution."
The Common Stock is quoted on Nasdaq under the symbol "FRES." On April
27, 1998 the last sale price of the Common Stock, as reported on Nasdaq, was
$22.25 per share.
------------------------------------
AN INVESTMENT IN THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 4.
------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE
------------------------------------
No dealer, salesman or any other person has been authorized to give any
information or to make and representations in connection with this offering
other than those contained in this Prospectus and, if given or made, such other
information and representations must not be relied upon as having been
authorized by the Company or the Selling Shareholders. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any circumstances,
create any implication that there has been no change in the affairs of the
Company since the date hereof or that the information contained herein is
correct as of any time subsequent to its date. This Prospectus does not
constitute an offer to sell, or a solicitation of any offer to buy, any
securities other than the registered securities to which it relates. This
Prospectus does not constitute an offer to sell, or a solicitation of any offer
to buy, such securities in any circumstances in which such offer or solicitation
is unlawful.
The date of this Prospectus is April 30, 1998.
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<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational reporting requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements, information statements
and other information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements, information statements, and other
information filed by the Company with the Commission pursuant to the
requirements of the Exchange Act may be inspected and copied at Judiciary Plaza,
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549-1004 and at the
following regional offices of the Commission: New York Regional Office, Seven
World Trade Center, Suite 1300, New York, New York 10048; and Chicago Regional
Office, Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60606. Copies of such material may be obtained from the Public
Reference Room of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Commission maintains a Web site that contains
reports, proxy statements, information statements and other information
regarding the Company. The Commission's Web site address is http://www.sec.gov.
The Company is a publicly held corporation and its Common Stock is traded on the
Nasdaq under the symbol "FRES." Reports, proxy statements, information
statements and other information can also be inspected at the offices of the
Nasdaq National Market, 1735 K Street, N.W., Washington, D.C. 20549.
The Company intends to furnish its shareholders with annual reports
containing audited consolidated financial statements and such other periodic
reports as it may determine to furnish or as may be required by law.
This Prospectus constitutes a part of a registration statement on Form
S-3 (together with all exhibits thereto, the "Registration Statement") filed by
the Company with the Commission under the Securities Act of 1933, as amended,
(the "Securities Act"). This Prospectus does not contain all information set
forth in the Registration Statement. Certain parts of the Registration Statement
have been omitted in accordance with the rules and regulations of the
Commission. For further information, reference is made to the Registration
Statement which can be inspected at the public reference rooms at the offices of
the Commission.
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<PAGE> 4
DOCUMENTS INCORPORATED BY REFERENCE
The following documents previously filed with the Commission pursuant
to the Securities Act and the Exchange Act are incorporated herein by reference
and shall be deemed a part hereof:
(i) the Company's Annual Report on Form 10-K, which contains audited
consolidated financial statements as of January 2, 1998 and January 3, 1997 and
for each of the years in the three year period ended January 2, 1998 (File No.
0-24124);
(ii) the Company's Current Report on Form 8-K filed February 17, 1998
(as amended on April 17, 1998), which includes the audited financial statements
of Francisco Distributing Company, LLC as of and for the year ended December 31,
1997 (File No. 0-24124); and
(iii) a description of the Common Stock contained in the Company's
registration statement on Form 8-A, dated May 12, 1994 (File No. 0-24124),
including amendments or reports filed for the purpose of updating such
description.
All documents filed with the Commission by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering relating to this
Prospectus will be deemed to be incorporated by reference into this Prospectus
and to be a part hereof from the date of filing of such documents. Any statement
incorporated or deemed to be incorporated by reference herein will be deemed to
be modified, replaced, or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded will be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, including any beneficial owner, upon the
written or oral request of such person, a copy of any or all of the documents
incorporated by reference herein (other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference into the information
that this Prospectus incorporates). Requests should be directed to:
Fresh America Corp.
6600 LBJ Freeway
Suite 180
Dallas, Texas 75240
Attn: Chief Financial Officer
Telephone: (972) 774-0575
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<PAGE> 5
THE COMPANY
Fresh America is a provider of integrated food distribution management
services for fresh produce and other refrigerated perishable products. These
services include regional/centralized purchasing, warehousing, distribution,
logistics, systems and customer support. The Company serves over 2,000 customers
and operates in 43 states and Canada through twenty-two distribution and
processing facilities located in Texas, Georgia, Florida, Pennsylvania, Indiana,
Ohio, Illinois, Louisiana, Nevada, California and Ontario, Canada. Throughout
its history, the Company has developed the expertise, infrastructure and systems
to offer both buyers and sellers of fresh produce a broad menu of services.
Because of its perishable nature, fresh produce presents challenges in
procurement and distribution and is generally handled by specialized
distributors.
The Company is a Texas corporation with its principal offices located
at 6600 LBJ Freeway, Suite 180, Dallas, Texas 75240 and its telephone number is
972/774-0575.
RISK FACTORS
ANY INVESTMENT IN THE COMMON STOCK HEREBY INVOLVES A HIGH DEGREE OF
RISK. PROSPECTIVE INVESTORS SHOULD READ THIS ENTIRE PROSPECTUS CAREFULLY AND
SHOULD CONSIDER, AMONG OTHER THINGS, THE RISKS AND THE SPECULATIVE FACTORS
INHERENT IN AND AFFECTING THE COMPANY'S BUSINESS DESCRIBED BELOW AND THROUGHOUT
THIS PROSPECTUS.
Risks Associated with New Business Opportunities. Management of the
Company has stated its intention to diversify the Company's customer base,
geographic - coverage, market penetration and service offerings through the
development of new business opportunities and through selected acquisitions. The
pursuit of such opportunities will require a significant investment of funds and
management attention by the Company. Any such opportunities will be subject to
all of the risks inherent in the establishment of a new product or service
offering, including competition, lack of sufficient customer demand,
unavailability of experienced management and unforeseen complications, delays
and cost increases. The Company may also incur costs in connection with pursuing
new growth opportunities that it cannot recover. There can be no assurance that
the Company will find suitable acquisition candidates at acceptable prices or
succeed in integrating any acquired business into the Company's existing
business or in retaining key customers and management of such acquired
businesses.
Access to Capital Markets. In order to fulfill its intention to
diversify its customer base and make selected acquisitions, the Company will
need to raise additional debt or equity capital funds. There can be no assurance
that the Company will be able to access the debt or equity capital markets or
obtain credit from financial institutions when such a need arises. Changes in
interest rates, market liquidity, stock prices and general market conditions may
all affect the Company's ability to raise funds.
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<PAGE> 6
Dependence on Sam's Club. Sam's Club, a division of Wal-Mart Stores,
Inc. ("Sam's"), is the Company's primary customer and accounted for
approximately 67%, 90% and 98% of the Company's sales for fiscal years 1997,
1996 and 1995, respectively, and is expected to continue to decrease as a
percentage of total sales. The Company's relationship with Sam's is governed by
the terms and conditions of a five year agreement (the "Agreement") which became
effective December 1, 1995 and expires on November 30, 2000. The Agreement gives
Fresh America the exclusive right to distribute fresh fruit and vegetables,
refrigerated pre-packed produce and produce-related refrigerated processed foods
to Sam's stores located within the Company's distribution centers.
Sam's is not required to purchase any particular quantity of produce
from the Company under the Agreement. Any adverse development affecting Sam's or
any decision by Sam's to close existing clubs, reduce the number of new clubs
that it opens or reduce the number of clubs that offer fresh produce and related
products could have a material adverse effect on the Company. The Company's
current Agreement with Sam's terminates on November 30, 2000, and may be
terminated by Sam's prior to such time under certain circumstances, for example,
if the Company commits a material breach under the Agreement or there are
material documented problems that continue unresolved with the distribution of
products by the Company.
The Agreement initially covered 375 Sam's Clubs. Sam's has the right to
terminate the Agreement to the extent of 40 Clubs each year, which right was
fully exercised by Sam's for 1997 and 1998. The Company expects such trend may
continue in 1999 and 2000. The Company's growth strategy is designed in part to
reduce the Company's dependence on Sam's over the five-year term of the
Agreement through strategic acquisitions as well as the expansion of existing
relationships with its other customers. As a result of the Company's strategy
efforts, the percentage of the Company's revenues derived from Sam's has
decreased from 98% at the start of the Agreement to 67% for fiscal 1997. The
Company currently expects revenues from Sam's to constitute not more than 33% of
fiscal 1998 sales on a pro forma basis giving effect to the acquisitions which
have already been completed during fiscal 1998 and given that an additional 40
Sam's Clubs will be terminated during fiscal 1998. The Company's objective is
for Sam's revenues to constitute no more than 20% of its annualized revenues by
the end of fiscal 1999.
Sam's has no obligation to extend or renew the Agreement or have any
other vendor relationship with the Company after December 1, 2000. The Company
believes that the distribution experience and systems it has developed from its
relationships with Sam's and its other customers, as well as from its
acquisitions, will enable it to successfully diversify its business. However,
there is substantial risk that the Agreement will not be extended or renewed,
and there can be no assurance that the Company's diversification efforts will be
successful. To the extent the Company is not able to successfully generate
additional profitable replacement business from its internal and external
programs by December 1, 2000, the loss of the Sam's business could have a
material adverse effect on the Company's revenues and net income.
Volatility of Prices and Quality. Prices of high quality fresh produce
are extremely volatile based on available supply, which can be significantly
affected by factors such as weather,
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<PAGE> 7
disease and level of agricultural production. Both sales and profitability could
be negatively affected during periods of exceptionally high, low or volatile
prices.
Competition. The Company operates in highly competitive markets, and
its success will be largely dependent on its ability to provide quality products
at the lowest possible prices. The Company competes with food service companies,
produce distribution companies and wholesale food distribution companies, some
of which have substantially greater financial resources than the Company. There
can no be assurance that the Company will be able to compete successfully with
current or future competitors.
Dependence on Key Personnel. The future success of the Company will
depend to a significant extent on the efforts and abilities of its senior
management. The loss of the services of one or more of the Company's senior
management personnel could have a material adverse effect on the Company.
Seasonality. The Company's business is seasonal, with its highest sales
and net income historically occurring during the fourth quarter. Any adverse
development affecting the Company's operations during this period, such as the
unavailability of high quality produce or harsh weather conditions could have a
disproportionate impact on the Company's results of operations for the full
year.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This Prospectus contains or incorporates by reference "forward-looking
statements" within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act that are subject to risks and uncertainties. All
statements other than statements of historical fact included or incorporated in
this Prospectus, and all statements regarding the financial position, business
strategy and plans and objectives of management of the Company are
forward-looking statements. Although the Company believes that the expectations
reflected in such forward-looking statements, are reasonable, it cannot give any
assurance that such expectations will prove to be correct. Important factors
that could cause actual results to differ materially from expectations are
disclosed under "Risk Factors" and elsewhere in this Prospectus and the
documents incorporated herein.
6
<PAGE> 8
SELLING SHAREHOLDERS
The shares of Common Stock to be sold pursuant to the offering were
acquired by the various Selling Shareholders in connection with three separate
acquisitions: (i) Lone Star Produce, Inc., (ii) Francisco Distributing Company,
LLC and (iii) Ontario Tree Fruits Limited, Trio Importing (No. 2) Company Ltd.
and Sarfog, Inc., as applicable. The table below sets forth information with
respect to the beneficial ownership of the Common Stock by the Selling
Shareholders immediately prior to this offering and as adjusted to reflect the
sale of shares of Common Stock pursuant to the offering, including shares that
certain Selling Shareholders have the right to acquire within 60 days of the
date of this Prospectus. All information with respect to the beneficial
ownership has been furnished by the Selling Shareholders.
<TABLE>
<CAPTION>
Beneficial Ownership Beneficial Ownership
Prior to Offering After Offering
---------------------------------------- -------------------------
Number of Percent of Shares to Number of Percent of
Name of Beneficial Owner Shares Class (1) be Sold (2) Shares Class
- ------------------------ --------- --------- ------------ --------- -----------
<S> <C> <C> <C> <C> <C>
Jack Cancellieri 185,534 3.9% 185,534 0 0%
Arnold Fogle 21,242 * 21,242 0 0%
Bill Kertes 14,375 * 14,375 0 0%
Peter Miller 14,375 * 14,375 0 0%
Agustino Sarraino 21,242 * 21,242 0 0%
Fernando Vargas 99,903 2.1% 99,903 0 0%
Arnold Fogle Holdings Limited(3) 225,480 5.1% 225,480 0 0%
First Lawrence Capital Corp. 23,592 * 23,592 0 0%
Salsar Holdings Limited 3,927 * 3,927 0 0%
Sarraino Holdings Limited(4) 255,480 5.1% 255,480 0 0%
William Boone 72,725 1.5% 72,725 0 0%
</TABLE>
- ---------------
* Less than one percent
(1) Computed based on the shares of Common Stock outstanding as of April 3,
1998, plus the total number of shares of Common Stock that certain
Selling Shareholders have the right to acquire within 60 days of the
date of this Prospectus. Such shares of Common Stock issuable within
such 60 days, however, are not deemed outstanding for purposes of
computing the percentage of ownership of any other person.
(2) Assumes all the shares of Common Stock that may be offered are sold.
(3) Arnold Fogle, a Selling Shareholder, owns all of the outstanding
capital stock of Arnold Fogle Holdings Limited.
(4) Agustino Sarraino, a Selling Shareholder, owns all of the outstanding
capital stock of Sarraino Holdings Limited.
PLAN OF DISTRIBUTION
The shares of Common Stock are being registered to permit public
secondary trading of such Common Stock by the holders thereof from time to time
after the date of this Prospectus. The sale of the Common Stock offered hereby
may be effected from time to time directly, or by one or more broker-dealers or
agents, in one or more transactions (which may involve crosses or block
transactions) on the Nasdaq National Market (or other national securities
exchange or quotation services on which the Common Stock may be listed or quoted
at the time of sale) or otherwise. Such Common Stock may be sold in one or more
negotiated transactions, or through a combination of such methods of
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<PAGE> 9
distribution, at prices related to prevailing market prices, fixed prices,
varying prices determined at the time of sale or at negotiated prices.
In the event one or more broker-dealers or agents agree to sell the
Common Stock, they may do so by purchasing the Common Stock as principals or by
selling the Common Stock as agent for the Selling Shareholder. Any such
broker-dealers or agents may receive compensation in the form of discounts,
concessions or commissions from the Selling Shareholder or the purchasers of the
shares of Common Stock for which such broker-dealer or agent may act as agent or
to whom they may sell as principal, or both (which compensation as to a
particular broker-dealer or agent may be in excess of customary compensation).
Under applicable rules and regulations under the Exchange Act, any
person engaged in a distribution of the Common Stock may not simultaneously
engage in market-making activities with respect to the Company's Common Stock
for the applicable period under Regulation M of the Exchange Act prior to the
commencement of such distribution. In addition and without limiting the
foregoing, the Selling Shareholder will be subject to applicable provisions of
the Exchange Act and the rules and regulations thereunder, including, without
limitation Regulation M, which provisions may limit the timing of purchases and
sales of the Common Stock by the Selling Shareholder. All of the foregoing may
affect the marketability of the Common Stock.
In order to comply with certain states' securities laws, if applicable,
the Common Stock will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states, the Common Stock may not be sold
unless the Common Stock has been registered or qualified for sale in such state
or an exemption from registration or qualification is available and is complied
with.
USE OF PROCEEDS
The Company will not receive any proceeds from this offering.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for
the Company by Hughes & Luce, L.L.P., Dallas, Texas.
EXPERTS
The consolidated financial statements of Fresh America Corp. as of
January 2, 1998 and January 3, 1997, and for each of the years in the three-year
period ended January 2, 1998, have been incorporated by reference herein and in
the registration statement in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by referenced herein, and
upon the authority of said firm as experts in accounting and auditing.
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<PAGE> 10
The consolidated financial statements of Francisco Distributing
Company, LLC, as of and for the year ended December 31, 1997 has been
incorporated by reference herein and in the registration statement in reliance
upon the report of Bechman Kirkland & Whitney, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
INDEMNIFICATION
As permitted by the Texas Business Corporation Act ("TBCA"), the
Company's Bylaws provide that the directors and officers of the Company will be
indemnified by the Company against certain liabilities that those persons may
incur in their capacities as directors or officers. Furthermore, the Company's
Restated Articles of Incorporation eliminate the liability of directors of the
Company to the maximum extent permitted by the TBCA.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company under Texas law, the Company's Articles of Incorporation or otherwise,
the Company 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 against such liabilities
(other than the payment by the Company of expenses incurred or paid by a
director, officer, or controlling person of the Company 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
Company 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.
9
<PAGE> 11
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table indicates the estimated expenses to be incurred in
connection with the offering described in this Registration Statement, all of
which will be paid by the Company.
<TABLE>
<S> <C>
Registration fee $6,502
Accounting fees and expenses 2,000
Legal fees and expenses 5,000
Miscellaneous expenses $1,498
------
Total: $15,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the TBCA, the Company's Bylaws provide that the
directors and officers of the Company will be indemnified by the Company against
certain liabilities that those persons may incur in their capacities as
directors or officers. Furthermore, the Company's Restated Articles of
Incorporation eliminate the liability of directors of the Company to the maximum
extent permitted by the TBCA.
ITEM 16. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on page II-5 of this Registration Statement, which Index is
incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(a) The undersigned 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.
(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. Notwithstanding the foregoing, any
increase or decrease in the volume of securities
offered (if the total dollar value of securities
offered would not exceed that which was registered)
and any deviation from the low or high and
II-1
<PAGE> 12
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective 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 registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed 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 relating 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 undersigned 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) and 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 Securities Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the registrant pursuant to the foregoing provisions, 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
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.
II-2
<PAGE> 13
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-3 and has duly caused the Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on April 30, 1998.
FRESH AMERICA CORP.
By: /s/ Robert C. Kiehnle
------------------------------------
Robert C. Kiehnle,
Executive Vice President and
Chief Financial Officer
(Principal Financial and Accounting
Officer)
II-3
<PAGE> 14
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-3
filed herewith and any and all amendments (including post-effective amendments)
to the Registration Statement and Registration Statements related to the same
offering, 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 April 30, 1998
------------------------------- and Chief Executive Officer
David I. Sheinfeld (Principal Executive Officer)
/s/ Robert C. Kiehnle Executive Vice President and April 30, 1998
------------------------------- Chief Financial Officer
Robert C. Kiehnle (Principal Financial and Accounting Officer)
/s/ Steve R. Grinstead Director April 30, 1998
-------------------------------
Steve R. Grinstead
/s/ Thomas M. Hubbard Director April 30, 1998
-------------------------------
Thomas M. Hubbard
/s/ Sheldon I. Stein Director April 30, 1998
-------------------------------
Sheldon I. Stein
/s/ Colon Washburn Director April 30, 1998
-------------------------------
Colon Washburn
/s/ Lawrence V. Jackson Director April 30, 1998
-------------------------------
Lawrence V. Jackson
</TABLE>
II- 4
<PAGE> 15
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibits
- -------- -----------------------
*5.1 Opinion of Hughes & Luce, L.L.P.
*23.1 Consent of Hughes & Luce, L.L.P. (included in Exhibit 5.1)
*23.2 Consent of KPMG Peat Marwick LLP
*23.3 Consent of Beckman Kirkland & Whitney
*24.1 Power of Attorney (included in Part II of this
Registration Statement)
- ---------------
* Filed Herewith.
<PAGE> 1
EXHIBIT 5.1
OPINION OF HUGHES & LUCE, L.L.P.
[HUGHES & LUCE, L.L.P. LETTERHEAD]
April 30, 1998
Fresh America Corp.
6600 LBJ Freeway
Suite 180
Dallas, Texas 785240
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 (the "Act"), of 937,875 shares of the
Company's common stock, par value $.01 per share (the "Common Stock"), held by
the Selling Shareholders (the "Selling Shareholders") as described in the
Registration Statement of the Company on Form S-3 (the "Registration Statement")
to be filed with the Securities and Exchange Commission on or about April 30,
1998.
In rendering this opinion, we have examined and relied upon executed
originals, counterparts or copies of such documents, records and certificates
(including certificates of public officials and officers of the Company) as we
considered necessary or appropriate for enabling us to express the opinions set
forth herein. In all such examinations, we have assumed the authenticity and
completeness of all documents submitted to us as originals and the conformity to
originals and completeness of all documents submitted to us as photostatic,
conformed, notarized or certified copies.
Based on the foregoing, we are of the opinion that (i) such shares of
Common Stock have been duly authorized, (ii) such shares of Common Stock
outstanding on the date hereof have been validly issued, fully paid and
nonassessable and (iii) the remainder of such shares of Common Stock to be
issued after the date hereof, when issued to the respective Selling Shareholder
in accordance with the terms and conditions of the acquisition documents
relating to such shares of Common Stock, will be validly issued, fully paid and
nonassessable.
This opinion may be filed as an exhibit to the Registration Statement.
We also consent to the reference to this firm as having passed on the validity
of such shares of Common Stock under the caption "Legal Matters" in the
prospectus that constitutes a part of 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 Act or the rules and regulations of
the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Hughes & Luce, L.L.P.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
Fresh America Corp.
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG PEAT MARWICK LLP
Dallas, Texas
April 30, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF BECKMAN KIRKLAND & WHITNEY
We consent to the incorporation by reference in the Registration
Statement on Form S-3 of Fresh America Corp. and the related prospectus of our
report dated February 20, 1998, appearing in the Current Report on Form 8-K of
Fresh America Corp. filed on February 17, 1998 (as amended on April 17, 1998),
and to the references to our Firm in this Registration Statement.
/s/ BECKMAN KIRKLAND & WHITNEY
Woodland Hills, California
April 22, 1998
