<PAGE> 1
EXHIBIT 10.3
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS: (A) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH
TRANSACTION INVOLVING SAID SECURITIES; (B) FRESH AMERICA CORP. RECEIVES AN
OPINION OF LEGAL COUNSEL FOR THE HOLDER HEREOF THAT SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION OR (C) FRESH AMERICA CORP. OTHERWISE SATISFIES ITSELF THAT
SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE
ISSUED: JULY 28, 2000 90,000 SHARES OF
VOID AFTER JULY 28, 2007 COMMON STOCK
FRESH AMERICA CORP.
COMMON STOCK
PURCHASE WARRANT
THIS IS TO CERTIFY that, for value received and subject to the terms
and conditions hereof, Henry Beyer ("Purchaser"), is entitled to purchase up to
Ninety Thousand (90,000) fully paid and nonassessable shares of the Common Stock
(the "Common Stock") of Fresh America Corp., a Texas corporation ("Fresh
America"), at the price per share of Two and 50/100 Dollars ($2.50) per share
(the "Exercise Price").
This Warrant is subject to the following additional terms and
conditions:
1. METHOD OF EXERCISE
This Warrant may be exercised only in whole at any time not
later than seven (7) years from the date of issuance hereof (the "Exercise
Period") by delivering to Fresh America: (a) the form of Election to Purchase
attached hereto duly completed and executed by Purchaser; (b) this Warrant; and
(c) a check payable to Fresh America in the amount of the Exercise Price
multiplied by the number of shares subject to this Warrant (the "Purchase
Price").
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2. DELIVERY OF STOCK CERTIFICATES
Within ten (10) days after the payment of the Purchase Price
following the exercise of this Warrant, Fresh America shall issue in the name of
and deliver to Purchaser a certificate or certificates for the number of fully
paid and nonassessable shares of Common Stock to which Purchaser shall be
entitled upon such exercise and payment. Purchaser shall for all purposes be
deemed to have become the holder of record of such shares of Common Stock on the
date by which this Warrant was surrendered and payment of the Purchase Price was
made, irrespective of the date of delivery of the certificate or certificates
representing the Common Stock; provided, that if the date by which such
surrender and payment is made is a date when the stock transfer books of Fresh
America are closed, such person shall be deemed to have become the holder of
record of such shares of Common Stock at the close of business on the next
succeeding date on which the stock transfer books are open.
3. COVENANTS AS TO COMMON STOCK
Fresh America covenants and agrees that all the shares of
Common Stock issued pursuant to the terms of this Warrant (the "Reserved
Shares") will, upon their issuance, be validly issued and outstanding, fully
paid and nonassessable. Fresh America further covenants and agrees that Fresh
America will at all times have authorized and reserved a sufficient number of
the Reserved Shares to provide for the exercise of the rights represented by
this Warrant.
4. TERMINATION UPON REORGANIZATION
Upon a merger, consolidation, acquisition of all or
substantially all of the property or stock, reorganization or liquidation of
Fresh America (collectively, a "Reorganization") during the Exercise Period, as
a result of which the shareholders of Fresh America receive cash, stock or other
property in exchange for their shares of Common Stock, this Warrant shall be
canceled and all rights granted hereunder shall terminate; provided, however,
that Fresh America shall have delivered to Purchaser notice of the
Reorganization no less than thirty (30) business days before the date scheduled
for the Reorganization and Purchaser shall have the right up to immediately
prior to the Reorganization to exercise this Warrant.
5. ADJUSTMENTS TO EXERCISE PRICE FOR DILUTION
In the event that Fresh America, after the date hereof: (a)
pays a stock dividend with respect to the Common Stock; (b) subdivides its
outstanding shares of Common Stock; (c) combines its outstanding shares of
Common Stock into a smaller number of shares of any class of Common Stock or (d)
issues shares of its capital stock in a reclassification of the Common Stock,
including any such reclassification in connection with a consolidation or merger
in which Fresh America is the surviving corporation (any one of which actions is
herein referred to as an "Adjustment Event"), the Exercise Price shall be
adjusted by multiplying such Exercise Price immediately prior to such Adjustment
Event by a fraction, the numerator of which shall be the number of shares of
Common Stock issued and
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outstanding immediately prior to such Adjustment Event, and the denominator of
which shall be the number of shares of Common Stock issued and outstanding
immediately thereafter. In the event of any such adjustment, the number of
shares subject to this Warrant shall be proportionately adjusted pursuant to
Section 6 below.
6. ADJUSTMENTS TO SHARES OF COMMON STOCK
Upon the occurrence of an Adjustment Event, there shall be
substituted for each share of Common Stock then subject to this Warrant the
number and kind of shares of stock or other securities to which the holders of
shares of Common Stock are entitled to receive for each share of Common Stock
surrendered pursuant to the transaction. In the event of any such adjustment,
the exercise price per share shall be proportionately adjusted pursuant to
Section 5 above.
7. FRACTIONAL SHARES
No fractional shares shall be issued upon the exercise of this
Warrant. In lieu of fractional shares, Fresh America shall pay Purchaser a sum
in cash equal to the fair market value of the fractional shares (as determined
by Fresh America's Board of Directors) on the date of exercise.
8. RESTRICTIONS ON TRANSFER
This Warrant and the Common Stock issuable upon conversion of
this Warrant may not be transferred unless: (a) such transfer is registered
under the Securities Act of 1933, as amended (the "Securities Act"), and any
applicable state securities or blue sky laws; (b) Fresh America has received a
legal opinion reasonably satisfactory to Fresh America to the effect that the
transfer is exempt from the prospectus delivery and registration requirements of
the Securities Act and any applicable state securities or blue sky laws; or (c)
Fresh America otherwise satisfies itself that such transfer is exempt from
registration. A legend setting forth or referring to the above restrictions
shall be placed on this Warrant, any replacement hereof or any certificate
representing the Common Stock issuable upon conversion of this Warrant, and a
stop transfer restriction or order shall be placed on the books of Fresh America
and with any transfer agent until such securities may be legally sold or
otherwise transferred.
9. REGISTRATION
(a) Fresh America will register the shares issuable upon
conversion of this Warrant for resale under the Securities Act
on a shelf registration statement on Form S-3 as promptly as
practicable after the date hereof. Fresh America may defer the
filing (but not the preparation) of the registration statement
for a period of up to 120 days if (i) at the time Fresh
America or any of its subsidiaries is engaged in confidential
negotiations or other
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confidential business activities, disclosure of which would be
required in such registration statement (but would not be
required if such registration statement were not filed), and
the Board of Directors of Fresh America determines in good
faith that such disclosure would be materially detrimental to
Fresh America and its shareholders or would have a material
adverse effect on any such confidential negotiations or other
confidential business activities, or (ii) at the time Fresh
America is engaged in activities pertaining to an underwritten
public offering of Fresh America's securities and the
underwriters have advised the Board of Directors of Fresh
America that the filing of the registration statement would
have a material adverse effect on its ability to consummate
such offering. A deferral of the filing of the registration
statement will be lifted, and the registration statement shall
be filed forthwith, if the negotiations or other activities
are disclosed or terminated. In order to defer the filing of
the registration statement, Fresh America will promptly (but
in any event within 10 days), upon determining to seek such
deferral, deliver to Purchaser a certificate signed by an
executive officer of Fresh America setting forth a
confidential statement of the reason for such deferral and an
approximation of the anticipated delay, which information
Purchaser shall treat as confidential.
(b) Fresh America will use its reasonable best efforts to cause
the registration statement to be become effective as promptly
after filing as is practicable, and will use its reasonable
best efforts to keep the registration statement current after
it becomes effective until the earlier of: (i) the date on
which Purchaser is permitted to sell the his shares directly
without restriction within 90 days pursuant to Rule 144 of the
Securities Act, and (ii) such date as of which Purchaser has
completed the distribution or other disposition (to persons
not affiliated with Purchaser) of all such shares. Fresh
America may include shares of other shareholders having
registration rights in the registration statement. Purchaser
will provide Fresh America with written notice at least three
(3) business days prior to selling any shares pursuant to such
registration statement and, at Fresh America's request, will
delay such sale for up to 45 days if necessary to insure that
the disclosure in the registration statement is current.
(c) Purchaser will cooperate with Fresh America in the preparation
and filing of the registration statement and any amendments
thereto. Fresh America will pay all costs and expenses
incidental to preparing and filing the registration statement
and any amendments and supplements thereto, except that
Purchaser will pay (i) underwriting discounts or selling
commissions respecting sales of such shares, (ii) all
applicable stock transfer taxes relating to any shares
transferred, and (iii) all fees and expenses of its counsel,
if any.
(d) Fresh America and Purchaser agree, severally and jointly, that
it or they will indemnify and hold harmless the other party
and any underwriter (as defined in the Securities Act), if
any, against any losses, claims, damages or liabilities, joint
or several, to which it or the other party may become subject,
whether under the Securities Act or otherwise, insofar as such
are caused by an untrue statement or alleged untrue statement
of any material fact contained in the registration statement,
or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements contained therein not misleading, to the
extent that the inclusion or omission was with respect to data
relating to Fresh America, for which Fresh America will be
responsible, or Purchaser or his stock holdings or manner of
sale, for which Purchaser will be responsible, as the case may
be.
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10. NO SHAREHOLDER RIGHTS
This Warrant shall not entitle Purchaser to any voting rights
or any other rights as a shareholder of Fresh America or to any other rights
whatsoever except the rights stated herein; and no dividend or interest shall be
payable or shall accrue in respect of this Warrant or the Common Stock issuable
upon conversion of this Warrant, until and to the extent that this Warrant shall
be exercised.
11. CONSTRUCTION
The validity and interpretation of the terms and provisions of
this Warrant shall be governed by the laws of the State of Texas. The
descriptive headings of the several sections of this Warrant are inserted for
convenience only and shall not control or affect the meaning or construction of
any of the provisions thereof.
12. LOST WARRANT CERTIFICATE
If this Warrant is lost, stolen, mutilated or destroyed, Fresh
America shall issue a new Warrant of like denomination, tenor and date as this
Warrant, subject to Fresh America's right to require Purchaser to give Fresh
America a bond or other satisfactory security sufficient to indemnify Fresh
America against any claim that may be made against it (including any expense or
liability) on account of the alleged loss, theft, mutilation or destruction of
this Warrant or the issuance of such new Warrant.
13. WAIVERS AND AMENDMENTS
This Warrant, or any provision hereof, may be changed, waived,
discharged or terminated only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought.
14. INVESTMENT INTENT AND ACCESS
Purchaser hereby represents and warrants that (a) this Warrant
is being acquired for investment for its account, not as nominee or agent, and
not with a view to the resale or distribution of any part thereof in a manner
that would violate the registration provisions of the Securities Act, or any
applicable state securities laws, (b) Purchaser has received from Fresh America
copies of Fresh America's annual report for 1999 on Form 10-K, all quarterly
reports on Form 10-Q filed since the beginning of 2000 and the proxy statement
for its annual meeting of shareholders held in 2000 (the "SEC Filings"), and (c)
Purchaser has had sufficient access to Fresh America and its officers to ask
questions related to the SEC Filings and Fresh America's business and operations
and to review such information, financial records and other documents relating
to the SEC Filings and Fresh America's operations and business as Purchaser has
requested.
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IN WITNESS WHEREOF, Fresh America has executed this Warrant as of the
date first written above.
FRESH AMERICA CORP.
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
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ELECTION TO PURCHASE
To: Fresh America Corp.
The undersigned hereby irrevocably elects to purchase ________________
shares of Common Stock issuable upon the exercise of this Warrant, and requests
that certificates for such shares shall be issued in the name of and delivered
to the address of the undersigned, at the address stated below.
Payment enclosed in the amount of $
----------------
Dated:
------------------
Name of holder of Warrant:
--------------------------
Signature:
-----------------------------
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THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS: (A) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH
TRANSACTION INVOLVING SAID SECURITIES; (B) FRESH AMERICA CORP. RECEIVES AN
OPINION OF LEGAL COUNSEL FOR THE HOLDER HEREOF THAT SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION OR (C) FRESH AMERICA CORP. OTHERWISE SATISFIES ITSELF THAT
SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE
ISSUED: JULY 28, 2000 105,000 SHARES OF
VOID AFTER JULY 28, 2007 COMMON STOCK
FRESH AMERICA CORP.
COMMON STOCK
PURCHASE WARRANT
THIS IS TO CERTIFY that, for value received and subject to the terms
and conditions hereof, Sam Perricone, Sr. ("Purchaser"), is entitled to purchase
up to One Hundred and Five Thousand (105,000) fully paid and nonassessable
shares of the Common Stock (the "Common Stock") of Fresh America Corp., a Texas
corporation ("Fresh America"), at the price per share of Two and 50/100 Dollars
($2.50) per share (the "Exercise Price").
This Warrant is subject to the following additional terms and
conditions:
1. METHOD OF EXERCISE
This Warrant may be exercised only in whole at any time not
later than seven (7) years from the date of issuance hereof (the "Exercise
Period") by delivering to Fresh America: (a) the form of Election to Purchase
attached hereto duly completed and executed by Purchaser; (b) this Warrant; and
(c) a check payable to Fresh America in the amount of the Exercise Price
multiplied by the number of shares subject to this Warrant (the "Purchase
Price").
2. DELIVERY OF STOCK CERTIFICATES
Within ten (10) days after the payment of the Purchase Price
following the exercise of this Warrant, Fresh America shall issue in the name of
and deliver to Purchaser a certificate or certificates for the number of fully
paid and nonassessable shares of Common Stock to which Purchaser shall be
entitled upon such exercise and payment. Purchaser shall for all purposes be
deemed to have become the holder of record of such shares of Common Stock on the
date by
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which this Warrant was surrendered and payment of the Purchase Price was made,
irrespective of the date of delivery of the certificate or certificates
representing the Common Stock; provided, that if the date by which such
surrender and payment is made is a date when the stock transfer books of Fresh
America are closed, such person shall be deemed to have become the holder of
record of such shares of Common Stock at the close of business on the next
succeeding date on which the stock transfer books are open.
3. COVENANTS AS TO COMMON STOCK
Fresh America covenants and agrees that all the shares of
Common Stock issued pursuant to the terms of this Warrant (the "Reserved
Shares") will, upon their issuance, be validly issued and outstanding, fully
paid and nonassessable. Fresh America further covenants and agrees that Fresh
America will at all times have authorized and reserved a sufficient number of
the Reserved Shares to provide for the exercise of the rights represented by
this Warrant.
4. TERMINATION UPON REORGANIZATION
Upon a merger, consolidation, acquisition of all or
substantially all of the property or stock, reorganization or liquidation of
Fresh America (collectively, a "Reorganization") during the Exercise Period, as
a result of which the shareholders of Fresh America receive cash, stock or other
property in exchange for their shares of Common Stock, this Warrant shall be
canceled and all rights granted hereunder shall terminate; provided, however,
that Fresh America shall have delivered to Purchaser notice of the
Reorganization no less than thirty (30) business days before the date scheduled
for the Reorganization and Purchaser shall have the right up to immediately
prior to the Reorganization to exercise this Warrant.
5. ADJUSTMENTS TO EXERCISE PRICE FOR DILUTION
In the event that Fresh America, after the date hereof: (a)
pays a stock dividend with respect to the Common Stock; (b) subdivides its
outstanding shares of Common Stock; (c) combines its outstanding shares of
Common Stock into a smaller number of shares of any class of Common Stock or (d)
issues shares of its capital stock in a reclassification of the Common Stock,
including any such reclassification in connection with a consolidation or merger
in which Fresh America is the surviving corporation (any one of which actions is
herein referred to as an "Adjustment Event"), the Exercise Price shall be
adjusted by multiplying such Exercise Price immediately prior to such Adjustment
Event by a fraction, the numerator of which shall be the number of shares of
Common Stock issued and outstanding immediately prior to such Adjustment Event,
and the denominator of which shall be the number of shares of Common Stock
issued and outstanding immediately thereafter. In the event of any such
adjustment, the number of shares subject to this Warrant shall be
proportionately adjusted pursuant to Section 6 below.
6. ADJUSTMENTS TO SHARES OF COMMON STOCK
Upon the occurrence of an Adjustment Event, there shall be
substituted for each share of Common Stock then subject to this Warrant the
number and kind of shares of stock or
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other securities to which the holders of shares of Common Stock are entitled to
receive for each share of Common Stock surrendered pursuant to the transaction.
In the event of any such adjustment, the exercise price per share shall be
proportionately adjusted pursuant to Section 5 above.
7. FRACTIONAL SHARES
No fractional shares shall be issued upon the exercise of this
Warrant. In lieu of fractional shares, Fresh America shall pay Purchaser a sum
in cash equal to the fair market value of the fractional shares (as determined
by Fresh America's Board of Directors) on the date of exercise.
8. RESTRICTIONS ON TRANSFER
This Warrant and the Common Stock issuable upon conversion of
this Warrant may not be transferred unless: (a) such transfer is registered
under the Securities Act of 1933, as amended (the "Securities Act"), and any
applicable state securities or blue sky laws; (b) Fresh America has received a
legal opinion reasonably satisfactory to Fresh America to the effect that the
transfer is exempt from the prospectus delivery and registration requirements of
the Securities Act and any applicable state securities or blue sky laws; or (c)
Fresh America otherwise satisfies itself that such transfer is exempt from
registration. A legend setting forth or referring to the above restrictions
shall be placed on this Warrant, any replacement hereof or any certificate
representing the Common Stock issuable upon conversion of this Warrant, and a
stop transfer restriction or order shall be placed on the books of Fresh America
and with any transfer agent until such securities may be legally sold or
otherwise transferred.
9. REGISTRATION
(a) Fresh America will register the shares issuable upon
conversion of this Warrant for resale under the Securities Act
on a shelf registration statement on Form S-3 as promptly as
practicable after the date hereof. Fresh America may defer the
filing (but not the preparation) of the registration statement
for a period of up to 120 days if (i) at the time Fresh
America or any of its subsidiaries is engaged in confidential
negotiations or other confidential business activities,
disclosure of which would be required in such registration
statement (but would not be required if such registration
statement were not filed), and the Board of Directors of Fresh
America determines in good faith that such disclosure would be
materially detrimental to Fresh America and its shareholders
or would have a material adverse effect on any such
confidential negotiations or other confidential business
activities, or (ii) at the time Fresh America is engaged in
activities pertaining to an underwritten public offering of
Fresh America's securities and the underwriters have advised
the Board of Directors of Fresh America that the filing of the
registration statement would have a material adverse effect on
its ability to consummate such offering. A deferral of the
filing of the registration statement will be lifted, and the
registration statement shall be filed forthwith, if the
negotiations or other activities are disclosed or terminated.
In order to defer the filing of the registration
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statement, Fresh America will promptly (but in any event
within 10 days), upon determining to seek such deferral,
deliver to Purchaser a certificate signed by an executive
officer of Fresh America setting forth a confidential
statement of the reason for such deferral and an approximation
of the anticipated delay, which information Purchaser shall
treat as confidential.
(b) Fresh America will use its reasonable best efforts to cause
the registration statement to be become effective as promptly
after filing as is practicable, and will use its reasonable
best efforts to keep the registration statement current after
it becomes effective until the earlier of: (i) the date on
which Purchaser is permitted to sell the his shares directly
without restriction within 90 days pursuant to Rule 144 of the
Securities Act, and (ii) such date as of which Purchaser has
completed the distribution or other disposition (to persons
not affiliated with Purchaser) of all such shares. Fresh
America may include shares of other shareholders having
registration rights in the registration statement. Purchaser
will provide Fresh America with written notice at least three
(3) business days prior to selling any shares pursuant to such
registration statement and, at Fresh America's request, will
delay such sale for up to 45 days if necessary to insure that
the disclosure in the registration statement is current.
(c) Purchaser will cooperate with Fresh America in the preparation
and filing of the registration statement and any amendments
thereto. Fresh America will pay all costs and expenses
incidental to preparing and filing the registration statement
and any amendments and supplements thereto, except that
Purchaser will pay (i) underwriting discounts or selling
commissions respecting sales of such shares, (ii) all
applicable stock transfer taxes relating to any shares
transferred, and (iii) all fees and expenses of its counsel,
if any.
(d) Fresh America and Purchaser agree, severally and jointly, that
it or they will indemnify and hold harmless the other party
and any underwriter (as defined in the Securities Act), if
any, against any losses, claims, damages or liabilities, joint
or several, to which it or the other party may become subject,
whether under the Securities Act or otherwise, insofar as such
are caused by an untrue statement or alleged untrue statement
of any material fact contained in the registration statement,
or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements contained therein not misleading, to the
extent that the inclusion or omission was with respect to data
relating to Fresh America, for which Fresh America will be
responsible, or Purchaser or his stock holdings or manner of
sale, for which Purchaser will be responsible, as the case may
be.
10. NO SHAREHOLDER RIGHTS
This Warrant shall not entitle Purchaser to any voting rights
or any other rights as a shareholder of Fresh America or to any other rights
whatsoever except the rights stated herein; and no dividend or interest shall be
payable or shall accrue in respect of this Warrant or the
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Common Stock issuable upon conversion of this Warrant, until and to the extent
that this Warrant shall be exercised.
11. CONSTRUCTION
The validity and interpretation of the terms and provisions of
this Warrant shall be governed by the laws of the State of Texas. The
descriptive headings of the several sections of this Warrant are inserted for
convenience only and shall not control or affect the meaning or construction of
any of the provisions thereof.
12. LOST WARRANT CERTIFICATE
If this Warrant is lost, stolen, mutilated or destroyed, Fresh
America shall issue a new Warrant of like denomination, tenor and date as this
Warrant, subject to Fresh America's right to require Purchaser to give Fresh
America a bond or other satisfactory security sufficient to indemnify Fresh
America against any claim that may be made against it (including any expense or
liability) on account of the alleged loss, theft, mutilation or destruction of
this Warrant or the issuance of such new Warrant.
13. WAIVERS AND AMENDMENTS
This Warrant, or any provision hereof, may be changed, waived,
discharged or terminated only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought.
14. INVESTMENT INTENT AND ACCESS
Purchaser hereby represents and warrants that (a) this Warrant
is being acquired for investment for its account, not as nominee or agent, and
not with a view to the resale or distribution of any part thereof in a manner
that would violate the registration provisions of the Securities Act, or any
applicable state securities laws, (b) Purchaser has received from Fresh America
copies of Fresh America's annual report for 1999 on Form 10-K, all quarterly
reports on Form 10-Q filed since the beginning of 2000 and the proxy statement
for its annual meeting of shareholders held in 2000 (the "SEC Filings"), and (c)
Purchaser has had sufficient access to Fresh America and its officers to ask
questions related to the SEC Filings and Fresh America's business and operations
and to review such information, financial records and other documents relating
to the SEC Filings and Fresh America's operations and business as Purchaser has
requested.
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IN WITNESS WHEREOF, Fresh America has executed this Warrant as of the
date first written above.
FRESH AMERICA CORP.
By:
-----------------------------------
Name:
--------------------------------
Title:
--------------------------------
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ELECTION TO PURCHASE
To: Fresh America Corp.
The undersigned hereby irrevocably elects to purchase ________________
shares of Common Stock issuable upon the exercise of this Warrant, and requests
that certificates for such shares shall be issued in the name of and delivered
to the address of the undersigned, at the address stated below.
Payment enclosed in the amount of $
--------------------
Dated:
----------------------
Name of holder of Warrant:
----------------------
Signature:
----------------------------
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THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS: (A) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH
TRANSACTION INVOLVING SAID SECURITIES; (B) FRESH AMERICA CORP. RECEIVES AN
OPINION OF LEGAL COUNSEL FOR THE HOLDER HEREOF THAT SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION OR (C) FRESH AMERICA CORP. OTHERWISE SATISFIES ITSELF THAT
SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE
ISSUED: JULY 28, 2000 105,000 SHARES OF
VOID AFTER JULY 28, 2007 COMMON STOCK
FRESH AMERICA CORP.
COMMON STOCK
PURCHASE WARRANT
THIS IS TO CERTIFY that, for value received and subject to the terms
and conditions hereof, the Sam Perricone Children's Trust ("Purchaser"), is
entitled to purchase up to One Hundred and Five Thousand (105,000) fully paid
and nonassessable shares of the Common Stock (the "Common Stock") of Fresh
America Corp., a Texas corporation ("Fresh America"), at the price per share of
Two and 50/100 Dollars ($2.50) per share (the "Exercise Price").
This Warrant is subject to the following additional terms and
conditions:
1. METHOD OF EXERCISE
This Warrant may be exercised only in whole at any time not
later than seven (7) years from the date of issuance hereof (the "Exercise
Period") by delivering to Fresh America: (a) the form of Election to Purchase
attached hereto duly completed and executed by Purchaser; (b) this Warrant; and
(c) a check payable to Fresh America in the amount of the Exercise Price
multiplied by the number of shares subject to this Warrant (the "Purchase
Price").
2. DELIVERY OF STOCK CERTIFICATES
Within ten (10) days after the payment of the Purchase Price
following the exercise of this Warrant, Fresh America shall issue in the name of
and deliver to Purchaser a certificate or certificates for the number of fully
paid and nonassessable shares of Common Stock to which Purchaser shall be
entitled upon such exercise and payment. Purchaser shall for all purposes be
deemed to have become the holder of record of such shares of Common Stock on the
date by
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which this Warrant was surrendered and payment of the Purchase Price was made,
irrespective of the date of delivery of the certificate or certificates
representing the Common Stock; provided, that if the date by which such
surrender and payment is made is a date when the stock transfer books of Fresh
America are closed, such person shall be deemed to have become the holder of
record of such shares of Common Stock at the close of business on the next
succeeding date on which the stock transfer books are open.
3. COVENANTS AS TO COMMON STOCK
Fresh America covenants and agrees that all the shares of
Common Stock issued pursuant to the terms of this Warrant (the "Reserved
Shares") will, upon their issuance, be validly issued and outstanding, fully
paid and nonassessable. Fresh America further covenants and agrees that Fresh
America will at all times have authorized and reserved a sufficient number of
the Reserved Shares to provide for the exercise of the rights represented by
this Warrant.
4. TERMINATION UPON REORGANIZATION
Upon a merger, consolidation, acquisition of all or
substantially all of the property or stock, reorganization or liquidation of
Fresh America (collectively, a "Reorganization") during the Exercise Period, as
a result of which the shareholders of Fresh America receive cash, stock or other
property in exchange for their shares of Common Stock, this Warrant shall be
canceled and all rights granted hereunder shall terminate; provided, however,
that Fresh America shall have delivered to Purchaser notice of the
Reorganization no less than thirty (30) business days before the date scheduled
for the Reorganization and Purchaser shall have the right up to immediately
prior to the Reorganization to exercise this Warrant.
5. ADJUSTMENTS TO EXERCISE PRICE FOR DILUTION
In the event that Fresh America, after the date hereof: (a)
pays a stock dividend with respect to the Common Stock; (b) subdivides its
outstanding shares of Common Stock; (c) combines its outstanding shares of
Common Stock into a smaller number of shares of any class of Common Stock or (d)
issues shares of its capital stock in a reclassification of the Common Stock,
including any such reclassification in connection with a consolidation or merger
in which Fresh America is the surviving corporation (any one of which actions is
herein referred to as an "Adjustment Event"), the Exercise Price shall be
adjusted by multiplying such Exercise Price immediately prior to such Adjustment
Event by a fraction, the numerator of which shall be the number of shares of
Common Stock issued and outstanding immediately prior to such Adjustment Event,
and the denominator of which shall be the number of shares of Common Stock
issued and outstanding immediately thereafter. In the event of any such
adjustment, the number of shares subject to this Warrant shall be
proportionately adjusted pursuant to Section 6 below.
6. ADJUSTMENTS TO SHARES OF COMMON STOCK
Upon the occurrence of an Adjustment Event, there shall be
substituted for each share of Common Stock then subject to this Warrant the
number and kind of shares of stock or
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other securities to which the holders of shares of Common Stock are entitled to
receive for each share of Common Stock surrendered pursuant to the transaction.
In the event of any such adjustment, the exercise price per share shall be
proportionately adjusted pursuant to Section 5 above.
7. FRACTIONAL SHARES
No fractional shares shall be issued upon the exercise of this
Warrant. In lieu of fractional shares, Fresh America shall pay Purchaser a sum
in cash equal to the fair market value of the fractional shares (as determined
by Fresh America's Board of Directors) on the date of exercise.
8. RESTRICTIONS ON TRANSFER
This Warrant and the Common Stock issuable upon conversion of
this Warrant may not be transferred unless: (a) such transfer is registered
under the Securities Act of 1933, as amended (the "Securities Act"), and any
applicable state securities or blue sky laws; (b) Fresh America has received a
legal opinion reasonably satisfactory to Fresh America to the effect that the
transfer is exempt from the prospectus delivery and registration requirements of
the Securities Act and any applicable state securities or blue sky laws; or (c)
Fresh America otherwise satisfies itself that such transfer is exempt from
registration. A legend setting forth or referring to the above restrictions
shall be placed on this Warrant, any replacement hereof or any certificate
representing the Common Stock issuable upon conversion of this Warrant, and a
stop transfer restriction or order shall be placed on the books of Fresh America
and with any transfer agent until such securities may be legally sold or
otherwise transferred.
9. REGISTRATION
(a) Fresh America will register the shares issuable upon
conversion of this Warrant for resale under the Securities Act
on a shelf registration statement on Form S-3 as promptly as
practicable after the date hereof. Fresh America may defer the
filing (but not the preparation) of the registration statement
for a period of up to 120 days if (i) at the time Fresh
America or any of its subsidiaries is engaged in confidential
negotiations or other confidential business activities,
disclosure of which would be required in such registration
statement (but would not be required if such registration
statement were not filed), and the Board of Directors of Fresh
America determines in good faith that such disclosure would be
materially detrimental to Fresh America and its shareholders
or would have a material adverse effect on any such
confidential negotiations or other confidential business
activities, or (ii) at the time Fresh America is engaged in
activities pertaining to an underwritten public offering of
Fresh America's securities and the underwriters have advised
the Board of Directors of Fresh America that the filing of the
registration statement would have a material adverse effect on
its ability to consummate such offering. A deferral of the
filing of the registration statement will be lifted, and the
registration statement shall be filed forthwith, if the
negotiations or other activities are disclosed or terminated.
In order to defer the filing of the registration
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statement, Fresh America will promptly (but in any event
within 10 days), upon determining to seek such deferral,
deliver to Purchaser a certificate signed by an executive
officer of Fresh America setting forth a confidential
statement of the reason for such deferral and an approximation
of the anticipated delay, which information Purchaser shall
treat as confidential.
(b) Fresh America will use its reasonable best efforts to cause
the registration statement to be become effective as promptly
after filing as is practicable, and will use its reasonable
best efforts to keep the registration statement current after
it becomes effective until the earlier of: (i) the date on
which Purchaser is permitted to sell the his shares directly
without restriction within 90 days pursuant to Rule 144 of the
Securities Act, and (ii) such date as of which Purchaser has
completed the distribution or other disposition (to persons
not affiliated with Purchaser) of all such shares. Fresh
America may include shares of other shareholders having
registration rights in the registration statement. Purchaser
will provide Fresh America with written notice at least three
(3) business days prior to selling any shares pursuant to such
registration statement and, at Fresh America's request, will
delay such sale for up to 45 days if necessary to insure that
the disclosure in the registration statement is current.
(c) Purchaser will cooperate with Fresh America in the preparation
and filing of the registration statement and any amendments
thereto. Fresh America will pay all costs and expenses
incidental to preparing and filing the registration statement
and any amendments and supplements thereto, except that
Purchaser will pay (i) underwriting discounts or selling
commissions respecting sales of such shares, (ii) all
applicable stock transfer taxes relating to any shares
transferred, and (iii) all fees and expenses of its counsel,
if any.
(d) Fresh America and Purchaser agree, severally and jointly, that
it or they will indemnify and hold harmless the other party
and any underwriter (as defined in the Securities Act), if
any, against any losses, claims, damages or liabilities, joint
or several, to which it or the other party may become subject,
whether under the Securities Act or otherwise, insofar as such
are caused by an untrue statement or alleged untrue statement
of any material fact contained in the registration statement,
or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements contained therein not misleading, to the
extent that the inclusion or omission was with respect to data
relating to Fresh America, for which Fresh America will be
responsible, or Purchaser or his stock holdings or manner of
sale, for which Purchaser will be responsible, as the case may
be.
10. NO SHAREHOLDER RIGHTS
This Warrant shall not entitle Purchaser to any voting rights
or any other rights as a shareholder of Fresh America or to any other rights
whatsoever except the rights stated herein; and no dividend or interest shall be
payable or shall accrue in respect of this Warrant or the
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Common Stock issuable upon conversion of this Warrant, until and to the extent
that this Warrant shall be exercised.
11. CONSTRUCTION
The validity and interpretation of the terms and provisions of
this Warrant shall be governed by the laws of the State of Texas. The
descriptive headings of the several sections of this Warrant are inserted for
convenience only and shall not control or affect the meaning or construction of
any of the provisions thereof.
12. LOST WARRANT CERTIFICATE
If this Warrant is lost, stolen, mutilated or destroyed, Fresh
America shall issue a new Warrant of like denomination, tenor and date as this
Warrant, subject to Fresh America's right to require Purchaser to give Fresh
America a bond or other satisfactory security sufficient to indemnify Fresh
America against any claim that may be made against it (including any expense or
liability) on account of the alleged loss, theft, mutilation or destruction of
this Warrant or the issuance of such new Warrant.
13. WAIVERS AND AMENDMENTS
This Warrant, or any provision hereof, may be changed, waived,
discharged or terminated only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought.
14. INVESTMENT INTENT AND ACCESS
Purchaser hereby represents and warrants that (a) this Warrant
is being acquired for investment for its account, not as nominee or agent, and
not with a view to the resale or distribution of any part thereof in a manner
that would violate the registration provisions of the Securities Act, or any
applicable state securities laws, (b) Purchaser has received from Fresh America
copies of Fresh America's annual report for 1999 on Form 10-K, all quarterly
reports on Form 10-Q filed since the beginning of 2000 and the proxy statement
for its annual meeting of shareholders held in 2000 (the "SEC Filings"), and (c)
Purchaser has had sufficient access to Fresh America and its officers to ask
questions related to the SEC Filings and Fresh America's business and operations
and to review such information, financial records and other documents relating
to the SEC Filings and Fresh America's operations and business as Purchaser has
requested.
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IN WITNESS WHEREOF, Fresh America has executed this Warrant as of the
date first written above.
FRESH AMERICA CORP.
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
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ELECTION TO PURCHASE
To: Fresh America Corp.
The undersigned hereby irrevocably elects to purchase ________________
shares of Common Stock issuable upon the exercise of this Warrant, and requests
that certificates for such shares shall be issued in the name of and delivered
to the address of the undersigned, at the address stated below.
Payment enclosed in the amount of $
---------------------
Dated:
------------------
Name of holder of Warrant:
-----------------------
Signature:
-----------------------------
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