<PAGE> 1
As filed with the Securities and Exchange Commission on December 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)
<TABLE>
<CAPTION>
TEXAS 76-0281274
<S> <C>
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
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: [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
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 202,275 $13.0625(2) $2,642,218(2) $734.54
=====================================================================================================================
</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.
Common Stock on December 28, 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, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(a), MAY DETERMINE.
<PAGE> 2
FRESH AMERICA CORP.
202,275 SHARES
COMMON STOCK
------------------------------------
Our shareholders listed below under the caption "Selling Shareholders"
are offering to sell up to 202,275 shares of our common stock under this
Prospectus. These Selling Shareholders acquired shares of our common stock from
us in private transactions.
The offering of shares of our common stock under this Prospectus is
being made by the Selling Shareholders only. It is not part of an original
issuance by us of shares of our common stock. Accordingly, all of the net
proceeds from the sale of shares of our common stock offered under this
Prospectus will go to the Selling Shareholders who offer and decide to sell
their shares. We will not receive any of the proceeds from the Selling
Shareholders' sale of their shares.
The Selling Shareholders may offer their shares of our common stock in
transactions on the Nasdaq Stock Market's National Market, in negotiated
transactions, or through a combination of these methods. The Selling
Shareholders may offer their shares of our common stock at prevailing market
prices or at privately negotiated prices. See below under the caption "Plan of
Distribution".
Our common stock is quoted on the Nasdaq and trades under the symbol
"FRES." On December 28, 1998 the closing price of one share of our common stock,
as reported on the Nasdaq, was $13.25.
------------------------------------
THIS INVESTMENT IN SHARES OF OUR COMMON STOCK INVOLVES A HIGH DEGREE OF
RISK. YOU SHOULD CAREFULLY CONSIDER THE "RISK FACTORS" BEGINNING ON PAGE 5.
------------------------------------
The Securities and Exchange Commission and state securities regulators have not
approved or disapproved of these securities or determined if this Prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
------------------------------------
You should rely only on the information contained in this document or
information that we have referred you to. We have not authorized anyone to
provide you with information that is different.
The shares of common stock being offered under this Prospectus are not
being offered in any jurisdiction where the offer is not permitted.
The information contained in this Prospectus is accurate only as of the
date of this Prospectus, regardless of the time of delivery of this Prospectus
or of any sale of shares of our common stock offered under this Prospectus.
This Prospectus is dated December 30, 1998.
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WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). Accordingly,
we file reports, proxy statements, information statements and other information
with the Securities and Exchange Commission (the "Commission"). You may read and
copy the various reports, proxy statements, information statements, and other
information that we file with the Commission pursuant to the requirements of the
Exchange Act 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 materials may be
obtained from the Public Reference Room of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. Also, the Commission
maintains a Web site that contains our various Commission filings and other
information about the Company. The Commission's Web site address is
http://www.sec.gov.
We are a publicly held corporation, and our common stock is traded on
the Nasdaq under the symbol "FRES." You may review copies of our various
reports, proxy statements, information statements and other information at the
offices of the Nasdaq National Market, 1735 K Street, N.W., Washington, D.C.
20549.
We intend to furnish our shareholders with annual reports containing
audited consolidated financial statements and other periodic reports as we may
determine or as may be required by law.
This Prospectus constitutes a part of a registration statement on Form
S-3 (together with all exhibits to such registration statement, the
"Registration Statement") that we have filed with the Commission under the
Securities Act of 1933, as amended, (the "Securities Act"). This Prospectus does
not contain all information included 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, please refer
to the Registration Statement which can be inspected on the Commission's Web
site or at the public reference rooms at the offices of the Commission.
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DOCUMENTS INCORPORATED BY REFERENCE
The Commission allows us to "incorporate by reference" certain
information and reports that we file with it. Accordingly, this Prospectus
incorporates by reference the following documents previously filed by us with
the Commission pursuant to the Securities Act and the Exchange Act, and these
documents shall be deemed a part of this Prospectus:
(i) our 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 fiscal years in the three year period ended January 2, 1998 (File No.
0-24124);
(ii) our Quarterly Report on Form 10-Q, which contains unaudited
consolidated financial statements as of April 3, 1998 and for each of the fiscal
quarters ended April 3, 1998 and March 28, 1997 (File No. 0-24124);
(iii) our Quarterly Report on Form 10-Q, which contains unaudited
consolidated financial statements as of July 3, 1998 and for each of the fiscal
quarters and six months ended July 3, 1998 and June 27, 1997 (File No. 0-24124);
(iv) our Quarterly Report on Form 10-Q, which contains unaudited
consolidated financial statements as of October 2, 1998 and for each of the
fiscal quarters and nine months ended October 2, 1998 and September 26, 1997
(File No. 0-24124);
(v) our 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 and pro forma financial information related to our
acquisition of Francisco Distributing Company, LLC as of and for the fiscal year
ended December 31, 1997 (File No. 0-24124); and
(vi) a description of the common stock contained in our 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 of the documents that we file with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and before the termination of the offering relating to this
Prospectus will be deemed to be incorporated by reference in this Prospectus and
to constitute a part of this Prospectus from the date that such documents are
filed with the Commission. For purposes of this Prospectus, any statement that
is incorporated or deemed to be incorporated by reference in this Prospectus
will be deemed to be modified, replaced, or superseded by a statement contained
in this Prospectus or contained in any other subsequently filed document that
also is or is deemed to be incorporated by reference in this Prospectus. Such
modified or superseded statement will be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
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<PAGE> 5
You may request, at no cost, copies of any or all of the documents
incorporated by reference in this Prospectus (other than the exhibits to such
documents, unless such exhibits are specifically incorporated by reference into
the information that this Prospectus incorporates) by writing or telephoning us
at:
Fresh America Corp.
6600 LBJ Freeway
Suite 180
Dallas, Texas 75240
Attn: Chief Financial Officer
Telephone: (972) 774-0575
THE COMPANY
We are a leading 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. We serve over 2,000 customers and
operate in 43 states and Canada through twenty-three distribution and processing
facilities located in Texas, Georgia, Florida, Pennsylvania, Indiana, Ohio,
Illinois, Louisiana, Nevada, California and Ontario, Canada. Throughout our
history, we have 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.
We are a Texas corporation. Our principal offices are located at 6600
LBJ Freeway, Suite 180, Dallas, Texas 75240 (telephone number 972/774-0575).
4
<PAGE> 6
RISK FACTORS
You should carefully consider the following risk factors and warnings
before making an investment decision. The risks described below are not the only
ones that we face. Additional risks that we do not yet know of or that we
currently think are immaterial may also impair our business operations. If any
of the following risks actually occur, our business, financial condition or
results of operations could be materially adversely affected. In such case, the
trading price of our common stock could decline, and you may lose all or part of
your investment. You should also refer to the other information set forth and
incorporated by reference in this Prospectus.
This Prospectus and the information incorporated by reference in this
Prospectus contain forward-looking statements. These statements refer to future
events or our future financial performance. In some cases, you can identify
forward-looking statements by terminology such as "may," "will," "should,"
"expects," "anticipates," "plans," "believes," "estimates," "predicts,"
"potential" or "continue" or the negative of such terms and other comparable
terminology. These statements are only predictions. Actual events or results may
differ materially. In evaluating these statements, you should specifically
consider various factors, including the risks outlined below. These factors may
cause our actual results to differ materially from those expressed in
forward-looking statements made or incorporated by reference in this Prospectus.
POTENTIAL ADVERSE EFFECT OF EXPANDING OUR BUSINESS.
Our management has stated its intention to expand and diversify our
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 our funds and the attention of our management. These opportunities
will be subject to all of the risks inherent in the establishment of a new
product or service offering, including intense competition, lack of sufficient
customer demand, unavailability of experienced management and unforeseen
complications, delays and cost increases. We may also incur costs in connection
with pursuing new growth opportunities that we cannot recover. There can be no
assurance that we will find suitable acquisition candidates at acceptable prices
or succeed in integrating any acquired business into our existing business or
that we will retain key customers and management of such acquired businesses.
WE MAY NOT BE ABLE TO RAISE NEEDED FUNDS.
In order to fulfill our intention to diversify our customer base and
make selected acquisitions, we will need to raise additional debt or equity
capital funds. There can be no assurance that we will be able to raise the debt
or equity capital 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 our ability to raise funds.
5
<PAGE> 7
LOSS OF SAM'S CLUB AS A CUSTOMER COULD ADVERSELY AFFECT OUR BUSINESS.
Sam's Club, a division of Wal-Mart Stores, Inc. ("Sam's"), is our
primary customer and accounted for approximately 39% of sales for the nine
months ended October 2, 1998 and 67%, 90% and 98% of our sales for fiscal years
1997, 1996 and 1995, respectively. Our relationship with Sam's is governed by
the terms and conditions of a five year agreement (the "Agreement") that became
effective December 1, 1995 and expires on November 30, 2000. The Agreement gives
us 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 geographic areas served by our distribution centers.
o Sam's is not required to purchase any particular quantity of produce
from us 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 us. Our current Agreement with
Sam's may be terminated by Sam's prior to November 30, 2000 under certain
circumstances, for example, if we commit a material breach under the Agreement
or there are material documented problems that continue unresolved with the
distribution of our products.
o 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. We expect that such trend may
continue in 1999 and 2000. Our expansion strategy is designed in part to reduce
our dependence on Sam's over the five-year term of the Agreement through
strategic acquisitions as well as the expansion of existing relationships with
our other customers. As a result of our strategic efforts, the percentage of our
revenues derived from Sam's has decreased from 98% at the start of the Agreement
to 39% for the nine months ended October 2, 1998. Our objective is for Sam's
revenues to constitute no more than 20% of our annualized revenues by the end of
fiscal 1999.
o Sam's has no obligation to extend or renew the Agreement or have any
other vendor relationship with us after December 1, 2000. We believe that the
distribution experience and systems we have developed from our relationships
with Sam's and our other customers, as well as from our acquisitions, will
enable us to successfully diversify our business. However, there is substantial
risk that the Agreement will not be extended or renewed, and there can be no
assurance that our diversification efforts will be successful. To the extent
that we are not able to successfully generate additional profitable replacement
business from our internal and external programs by December 1, 2000, the loss
of the Sam's business could have a material adverse effect on our revenues and
net income.
POTENTIAL ADVERSE EFFECTS OF PRICE AND QUALITY FLUCTUATIONS.
Prices of high quality fresh produce are extremely volatile based on
available supply, which can be significantly affected by factors such as
weather, disease and level of agricultural production. Both our sales and
profitability could be negatively affected during periods of exceptionally high,
low or volatile prices.
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WE OPERATE IN HIGHLY COMPETITIVE MARKETS.
We operate in highly competitive markets, and our success will be
largely dependent on our ability to provide quality products at the lowest
possible prices. We compete with food service companies, produce distribution
companies and wholesale food distribution companies, some of which have
substantially greater financial resources. There can no be assurance that we
will be able to compete successfully with current or future competitors.
LOSS OF KEY PERSONNEL COULD ADVERSELY AFFECT OUR BUSINESS.
Our future success will depend to a significant extent on the efforts
and abilities of our senior management. The loss of the services of one or more
of our senior managers could have a material adverse effect on us.
WE HAVE A SEASONAL BUSINESS.
Our business is seasonal, with our highest sales and net income
historically occurring during our fourth fiscal quarter. Any adverse development
affecting our operations during this period, such as the unavailability of high
quality produce or harsh weather conditions, could have a disproportionate
impact on our results of operations for the full year.
SPECIAL NOTE REGARDING 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. These
statements involve known and unknown risks, uncertainties, and other factors
that may cause our or our industry's actual results, levels of activity,
performance, or achievements to be materially different from any future results,
levels of activity, performance, or achievements expressed or implied by such
forward-looking statements. Such factors include, among others, those listed
under "Risk Factors" and elsewhere in this Prospectus and information
incorporated by reference in this Prospectus.
In some cases, you can identify forward-looking statements by
terminology such as "may," "will," "should," "expects," "anticipates," "plans,"
"believes," "estimates," "predicts," "potential" or "continue" or the negative
of such terms or other comparable terminology.
Although we believe that the expectations reflected in the
forward-looking statements are reasonable, we cannot guarantee future results,
levels of activity, performance or achievements.
Moreover, neither we nor any other person assumes responsibility for
the accuracy and completeness of any such forward-looking statements. We are
under no duty to update any of the forward-looking statements after the date of
this Prospectus to conform such statements to actual results.
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<PAGE> 9
SELLING SHAREHOLDERS
The shares of common stock to be sold pursuant to the offering under
this Prospectus were acquired by the Selling Shareholders in connection with
Fresh America's acquisitions of King's Onion House, Inc., Sam Perricone Citrus
Co., Inc. and Lone Star Produce, Inc. The table below sets forth information
with respect to the Selling Shareholders' beneficial ownership of our common
stock immediately prior to this offering and as adjusted to reflect the sale of
shares of common stock pursuant to this offering. All information with respect
to the Selling Shareholders' beneficial ownership in our common stock 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>
William Boone 7,500 * 7,500 0 0%
Norman O. King 75,474 1.38% 75,474 0 0%
Sam Perricone 41,756 * 41,756 0 0%
Henry Beyer 35,790 * 35,790 0 0%
Sam Perricone Children's Trust 41,755 * 41,755 0 0%
</TABLE>
- ---------------
*Less than 1%
(1) Computed based on the shares of common stock outstanding as of December 28,
1998.
(2) Assumes all the shares of common stock that may be offered are sold.
PLAN OF DISTRIBUTION
The shares of common stock being offered hereby are being registered to
permit public secondary trading of such shares by their holders from time to
time after the date of this Prospectus. The sale of shares of our common stock
offered hereby may be effected, from time to time, either 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 also
be sold in one or more negotiated transactions, or through a combination of such
methods of distribution, at the prevailing market prices, fixed prices, varying
prices determined at the time of sale or at negotiated prices.
Broker-dealers or agents who effect sales of our common stock for the
Selling Shareholders may do so by purchasing the common stock as principals or
by selling the common stock as agent for the Selling Shareholders. Any such
broker-dealer or agent may receive compensation in the form of discounts,
concessions or commissions from the Selling Shareholders or from the purchasers
of the shares of common stock for which such broker-dealer or agent acts as
agent or to whom such broker-dealer sells as principal, or both (which
compensation as to a particular broker-dealer or agent may be in excess of
customary compensation).
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The Selling Shareholders will be subject to applicable provisions of
the Exchange Act and the rules and regulations thereunder. These provisions may
limit the timing of purchases and sales of the common stock offered by the
Selling Shareholders and thereby affect the marketability of such common stock.
For example, Rule 102 under Regulation M promulgated under the Exchange Act
prohibits any person connected with a distribution of our common stock (a
"Distribution") from directly or indirectly bidding for, or purchasing for any
account in which he or she has a beneficial interest, any of our common stock or
any right to purchase our common stock, for a period of one business day before
and after the completion of his or her participation in the Distribution (we
refer to that time period as the "Distribution Period").
During the Distribution Period, Rule 104 under Regulation M prohibits
the Selling Shareholders and any other persons engaged in the Distribution from
engaging in any stabilizing bid or purchasing our common stock except for the
purpose of preventing or retarding a decline in the open market price of our
common stock. No such person may effect any stabilizing transaction to
facilitate any offering on the public market. Inasmuch as the Selling
Shareholders will be reoffering and reselling our common stock on the public
market, Rule 104 prohibits them from effecting any stabilizing transaction in
contravention of Rule 104 with respect to our 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 that state
or an exemption from registration or qualification is available and is complied
with.
USE OF PROCEEDS
We will not receive any proceeds from this offering.
LEGAL MATTERS
The validity of the common stock offered hereby will be passed upon for
us by Hughes & Luce, L.L.P., Dallas, Texas.
EXPERTS
The consolidated financial statements of Fresh America Corp. and its
subsidiaries 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 reference herein, and upon the authority of said firm as experts in
accounting and auditing.
The consolidated financial statements of Francisco Distributing
Company, LLC, as of and for the year ended December 31, 1997 have been
incorporated by reference in this Prospectus and in the Registration Statement
in reliance upon the report of Bechman Kirkland & Whitney, independent certified
public accountants, which report is incorporated by reference herein, and upon
the authority of said firm as experts in accounting and auditing.
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INDEMNIFICATION
As permitted by the Texas Business Corporation Act ("TBCA"), our Bylaws
provide that we will indemnify our directors and officers against certain
liabilities that those persons may incur in their capacities as directors or
officers. Furthermore, our Restated Articles of Incorporation eliminate the
liability of our directors to the maximum extent permitted by the TBCA.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons under
Texas law, our Articles of Incorporation or otherwise, we have 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 our payment of expenses incurred or paid by one of our directors,
officers, or controlling persons 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, we will, unless in the opinion
of our counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
us is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
10
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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 us.
<TABLE>
<S> <C>
Registration fee $ 734.54
Accounting fees and expenses 2,000.00
Legal fees and expenses 4,000.00
Miscellaneous expenses 3,265.46
-----------
Total: $ 10,000.00
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the TBCA, our Bylaws provide that we will indemnify our
directors and officers against certain liabilities that those persons may incur
in their capacities as directors or officers. Furthermore, our Restated Articles
of Incorporation eliminate the liability of our directors 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
of the estimated maximum offering range may be reflected
in the form of
II-1
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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> 14
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 December 30, 1998.
FRESH AMERICA CORP.
By: /s/ John Gray
----------------------------------------------
John Gray,
Executive Vice President and
Chief Financial Officer
(Principal Financial and Accounting Officer)
II-3
<PAGE> 15
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 John Gray 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, December 30, 1998
-------------------------------- Chief Executive Officer
David I. Sheinfeld and Director
(Principal Executive Officer)
/s/ John Gray Executive Vice President and December 30, 1998
-------------------------------- Chief Financial Officer
John Gray (Principal Financial and Accounting Officer)
/s/ Steven R. Grinstead Director December 30, 1998
--------------------------------
Steven R. Grinstead
/s/ Thomas M. Hubbard Director December 30, 1998
--------------------------------
Thomas M. Hubbard
/s/ Sheldon I. Stein Director December 30, 1998
--------------------------------
Sheldon I. Stein
-------------------------------- Director December __, 1998
Lawrence V. Jackson
/s/ Colon Washburn Director December 30, 1998
--------------------------------
Colon Washburn
</TABLE>
II-4
<PAGE> 16
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
------- -----------------------
<S> <C>
*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)
</TABLE>
- ---------------
* Filed Herewith.
<PAGE> 1
EXHIBIT 5.1
OPINION OF HUGHES & LUCE, L.L.P.
[HUGHES & LUCE, L.L.P. LETTERHEAD]
1717 Main Street, Suite 2800
Dallas, Texas 75201
(214) 939-5500
December 30, 1998
Fresh America Corp.
6600 LBJ Freeway
Suite 180
Dallas, Texas 75240
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 202,275 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 December 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 such shares of
Common Stock have been duly authorized and validly issued and are 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
December 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
December 30, 1998
