<PAGE> 1
As filed with the Securities and Exchange Commission on September 7, 2000.
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
(469) 791-5700
(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 President Alan J. Bogdanow
6600 LBJ Freeway, Suite 180 Hughes & Luce, L.L.P.
Dallas, Texas 75240 1717 Main Street, Suite 2800
(469) 791-5700 Dallas, Texas 75201
(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
==================================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SHARES TO BE AGGREGATE PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 300,000 $2.38 $714,000 $189
==================================================================================================================
</TABLE>
(1) Includes (i) up to 300,000 shares of Fresh America Corp. Common Stock to be
issued upon exercise of warrants and (ii) an indeterminate number of
additional shares of Fresh America Corp. Common Stock as may from time to
time become issuable upon exercise of the warrants by reason of stock
splits, stock dividends and similar transactions, which shares are
registered hereunder pursuant to Rule 416 under the Securities Act of 1933,
as amended.
(2) Estimated solely for the purpose of calculating the registration fee,
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 September 1, 2000, 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
6
300,000 SHARES
FRESH AMERICA CORP.
COMMON STOCK
-------------------------------
We have issued warrants to purchase 300,000 shares of our common stock.
These warrants were issued pursuant to the terms of an Amendment to Stock
Purchase Documents, dated as of July 28, 2000, between us and the shareholders
listed below under the caption "Selling Shareholders." These Selling
Shareholders can use this prospectus to sell to other purchasers some or all of
the shares of our common stock they will receive by exercising their warrants.
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. However, we may receive cash consideration in connection
with the exercise of the warrants held by the Selling Shareholders. We are
paying for the costs of registering the shares covered by this prospectus, other
than commissions, fees and discounts of underwriters, brokers, dealers and
agents, if any.
The Selling Shareholders may offer their shares of our common stock in
transactions on the Nasdaq Stock Market's National Market (we refer to it as the
"Nasdaq"), in negotiated transactions, through a combination of these methods or
in any other legal way. The Selling Shareholders may offer their shares of our
common stock at prevailing market prices, at prices related to market prices, at
fixed prices that may change 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 September 1, 2000, the closing price of one share of our common
stock, as reported on the Nasdaq, was $2.38.
-------------------------------
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.
-------------------------------
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 September 7, 2000.
<PAGE> 3
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (we refer to it as the "Exchange
Act"). Accordingly, we file reports, proxy statements, information statements
and other information with the Securities and Exchange Commission (we refer to
it as 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 these 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 us. 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 also 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 that we have filed with the Commission under the Securities Act of 1933, as
amended, (we refer to it as 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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<PAGE> 4
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 are deemed a part of this prospectus:
(i) our Annual Report on Form 10-K, which contains audited consolidated
financial statements as of December 31, 1999 and January 1, 1999 and for each of
the fiscal years in the three year period ended December 31, 1999 (File No.
000-24124);
(ii) our Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2000 (File No. 000-24124);
(iii) our Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 2000 (File No. 000-24124); and
(iv) a description of the common stock contained in our registration
statement on Form 8-A, dated May 12, 1994 (File No. 000-24124), 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.
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: (469) 791-5700
3
<PAGE> 5
THE COMPANY
We are a major North American fresh produce distribution company. Our
services include regional/centralized purchasing, warehousing, distribution,
logistics, systems and customer support. We serve over 4,000 customers and
operate in 42 states and Canada through 16 distribution and processing
facilities located in Arizona, California, Florida, Georgia, Illinois, Indiana,
Pennsylvania, Texas and Ontario, Canada.
We are a Texas corporation. Our principal offices are located at 6600
LBJ Freeway, Suite 180, Dallas, Texas 75240 (telephone number 469/791-5700). We
maintain a Web site at www.freshamerica.com.
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,
or in any other SEC filings or public statements we may make. We undertake no
obligation to publicly update any forward-looking statements, whether as a
result of new information, future events or otherwise.
OUR LEVERAGE IS SUBSTANTIAL, MAKING IT MORE DIFFICULT TO RESPOND TO CHANGING
BUSINESS CONDITIONS.
As of June 30, 2000, we had $42.3 million of debt, consisting primarily of
our senior credit facility, subordinated debt and our Canadian revolving credit
facility. On April 28, 2000, we issued $5.0 million of redeemable preferred
stock and warrants. Our financial advisor is also seeking to raise additional
capital in the form of preferred stock or subordinated debt. The degree to which
we are leveraged:
o could materially limit or impair our ability to obtain additional
financing or refinancing in the future for working capital, capital
expenditures, acquisitions, general corporate purposes or other
purposes;
o will require us to dedicate a substantial portion of our cash flow to
the payment of principal and interest on our indebtedness and
dividends on our preferred stock, which reduces the availability of
cash flow to fund working capital, capital expenditures and growth
opportunities; and
o will increase our vulnerability to economic downturns, limit our
ability to withstand competitive pressures and reduce our flexibility
in responding to changing business and economic conditions.
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<PAGE> 7
WE WILL REQUIRE A SIGNIFICANT AMOUNT OF CASH TO SERVICE OUR INDEBTEDNESS AND
PREFERRED STOCK; OUR ABILITY TO GENERATE CASH DEPENDS ON MANY FACTORS BEYOND OUR
CONTROL.
Our ability to make scheduled payments with respect to indebtedness and
preferred stock will depend upon, among other things:
o our ability to achieve significant and sustained growth in cash
flow;
o successful operation of our business;
o produce commodity pricing;
o our ability to expand or generate new customer relationships to
offset the total loss of our Sam's business beginning in November
2000; and
o our ability to complete additional financings.
Each of these factors is affected by economic, financial, competitive
and other factors, many of which are beyond our control. If we are unable to
generate sufficient cash flow to service our indebtedness or preferred stock, we
may have to reduce or divest certain operations, restructure or refinance our
indebtedness or preferred stock or seek additional equity capital.
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 leveraging the infrastructure of our existing businesses. 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 or change in customer tastes, inadequate assured
sources of quality product supply and unforeseen complications, delays and cost
increases. Some of our prior acquisitions were not successfully integrated into
our business and there can be no assurance that we will succeed in integrating
such new business into our existing infrastructure.
LOSS OF SAM'S CLUB AS A CUSTOMER WILL ADVERSELY AFFECT OUR BUSINESS.
Sam's Club, a division of Wal-Mart Stores, Inc., is our primary
customer and accounted for approximately 31%, 37% and 55% of our sales for
fiscal 1999, 1998 and 1997, respectively. Our relationship with Sam's is
governed by the terms and conditions of a five-year agreement that became
effective December 1, 1995 and was scheduled to expire on November 30, 2000.
Under the terms of the agreement, Sam's has withdrawn 40 clubs per year from
service since 1997 as Wal-Mart or Sam's distribution centers opened to provide
direct service to Wal-Mart Supercenters and/or Sam's Clubs. To ensure an orderly
transition, in August 2000 the Company and Sam's agreed to an early termination
of the agreement whereby service to all Clubs will be withdrawn by October 24,
2000. As part of this agreement, the Company will receive an amount equal to the
estimated margin that would have been earned had the early termination not
occurred. Currently, we provide service to 238 clubs. Our expansion strategy was
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 program
sales and distribution and value-added products.
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<PAGE> 8
The loss of Sam's business after the agreement expires will adversely
affect our revenues and related profitability beyond October 24, 2000. Sam's
currently contributes approximately one-third of our revenue base. While the
loss of Sam's business will mean the elimination of substantial related
operating expenses, our operating income may be reduced to a greater extent than
our revenues because we may not be able to eliminate all of our Sam's related
expenses and because the Sam's business has been one of our higher operating
margin programs.
THE TERMS OF OUR SENIOR SECURED REVOLVING CREDIT FACILITY AND SUBORDINATED DEBT
IMPOSE RESTRICTIONS ON OUR OPERATIONS.
The terms and conditions of our senior secured revolving credit
facility impose restrictions that affect, among other things, our ability to
incur debt, make capital expenditures, merge, sell assets, make distributions,
or create or incur liens. Availability of our credit facility is also subject to
scheduled principal reductions and is further limited to predetermined amounts
in excess of a computed borrowing base. Our ability to comply with these
requirements can be affected by events beyond our control and there can be no
assurance that we will achieve operating results that comply with the provisions
of the credit agreement. A breach of these covenants could result in a default
under our credit facility. In the event of a default, the bank could elect to
declare the outstanding principal amount of our credit facility, all interest
thereon and all other amounts payable under our credit facility to be
immediately due and payable. Our subordinated debt also contains various
restrictions which if not complied with could result in a default and possible
acceleration of the subordinated debt. Acceleration of our subordinated debt
would also cause our Preferred Stock to become immediately redeemable.
Our ability to satisfy our debt obligations will depend upon our future
operating performance, which will be affected by prevailing economic, financial
and business conditions and other factors, some of which are beyond our control.
WE MAY NOT BE ABLE TO RAISE NEEDED FUNDS.
During the last six months of 1999 to enhance cash flow, we reduced
overhead levels, closed or sold underperforming operations and redirected
resources away from a capital-intensive acquisition strategy to a strategy that
further enhances and better leverages our existing infrastructure. During 2000,
we intend to sell our Houston distribution center previously dedicated to our
Sam's business and we expect to also receive a substantial tax refund for
Federal income taxes paid in 1997 and 1998. In May 2000, our subordinated lender
purchased $5.0 million of Preferred Stock and extended the payment terms of
their debt. These actions, coupled with our operating cash flow, will be used to
make mandatory as well as voluntary reductions to our revolving credit facility
during 2000.
There can be no assurance that we will be able to generate sufficient
cash flow or raise additional debt or equity capital on satisfactory terms in
order to refinance our senior credit facility and expand our business. Changes
in interest rates, market liquidity, stock prices and general market conditions
may all affect our ability to raise funds.
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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 or when we cannot obtain sufficient high quality produce.
During periods of lower produce prices, our operating income is adversely
affected because we have less gross margin to cover operating expenses.
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 be no 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.
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<PAGE> 10
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.
SELLING SHAREHOLDERS
Effective July 28, 2000, we entered into an Amendment to Stock Purchase
Documents with Sam Perricone, Sr., Henry Beyer and the Sam Perricone Children's
Trust (we refer to them collectively as the "Selling Shareholders"), pursuant to
which, among other things, we issued common stock purchase warrants to the
Selling Shareholders entitling the Selling Shareholders to purchase up to an
aggregate of 300,000 shares of our common stock. The shares of common stock to
be sold pursuant to the offering under this prospectus are the shares of common
stock, if any, that we may issue to the Selling Shareholders in connection with
the warrants. In connection with the Amendment to Stock Purchase Documents, we
agreed to register the shares of our common stock that would be received by the
Selling Shareholders upon exercise of their warrants so that they may resell
their common stock if they so desire. See "Description of Securities" below. The
Selling Shareholders are the former owners of our operating division, Sam
Perricone Citrus Company.
The table below sets forth information with respect to the Selling
Shareholders' 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' ownership in
our common stock has been furnished by the Selling Shareholders.
<TABLE>
<CAPTION>
Ownership Ownership
Prior to Offering After Offering
-------------------------------------- ------------------------
Number of Percent of Shares to Number of Percent of
Name of Selling Shareholders Shares Class(1) be Sold(2) Shares(2) Class(2)
---------------------------- ---------- ------------ --------- --------- -----------
<S> <C> <C> <C> <C> <C>
Sam Perricone, Sr. 105,000 2.0% 105,000 0 0%
Henry Beyer 90,000 1.7% 90,000 0 0%
Sam Perricone Children's Trust 105,000 2.0% 105,000 0 0%
</TABLE>
---------------
(1) Percentages are based on the total number of shares outstanding at
September 1, 2000, plus the total number of outstanding securities held
by such person that are exchangeable into our common stock within 60
days of such date. Shares issuable upon the conversion of securities
exchangeable into our common stock, however, are not deemed outstanding
for purposes of computing the percentage ownership of any other person.
(2) Assumes all the shares of common stock that may be offered are sold.
The Selling Shareholders may sell all, some or none of the shares they
hold.
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USE OF PROCEEDS
We may receive cash consideration in connection with the exercise of
the warrants held by the Selling Shareholders. We will not receive any proceeds
from the sale by the Selling Shareholders of any of the shares offered with this
prospectus. We intend to use any cash proceeds that we receive in connection
with the exercise of any warrants for general corporate purposes, including
working capital. We will pay all of the costs of this offering other than
commissions, fees and discounts of underwriters, brokers, dealers and agents, if
any.
DETERMINATION OF OFFERING PRICE
Because this prospectus relates only to the resale of previously issued
shares of common stock, we did not determine an offering price. The Selling
Shareholders will individually determine the offering price of the common stock.
The price at which the common stock is sold may be based on market prices
prevailing at the time of sale, at prices relating to such prevailing market
prices, at fixed prices that may be changed, or at negotiated prices.
PLAN OF DISTRIBUTION
The shares of our common stock being offered by this prospectus may be
sold from time to time by the Selling Shareholders and by their pledgees,
donees, transferees, successors or others who may later hold their interests (we
refer to them collectively as the "Sellers"). The Sellers may sell their shares,
directly or through one or more dealers, brokers or agents, on the Nasdaq
National Market or otherwise. The Sellers may sell some or all of their shares
of our common stock through any of the following transactions or any other
lawful transaction:
o ordinary brokerage transactions and transactions in which a broker
solicits purchasers;
o a block trade in which a broker or dealer will try to sell the shares
as agent, but may buy and resell a portion of the block as principal
in order to facilitate the transaction;
o purchases by a broker or dealer as principal and resale by the broker
or dealer for its account;
o purchases by a broker or dealer of a fixed number of shares at a
stipulated price per share;
o exchange distributions in accordance with the rules of the exchange on
which it takes place; or
o privately negotiated transactions.
The Sellers may pledge their shares to a lender as collateral for a loan, and
may pledge or loan their shares to a broker or dealer, under the margin
provisions of a customer agreement or otherwise. If the Seller defaults on the
loan, the lender, broker or dealer to whom the shares were pledged or loaned
may, from time to time, offer or sell the shares under this prospectus or
otherwise.
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<PAGE> 12
The prices in these sale or loan transactions may be prevailing market
prices, prices relating to market prices, at fixed prices that may be changed
and at negotiated prices. Brokers and dealers who sell the shares of our common
stock for the Sellers, whether acting as principal or agent, may receive
compensation in the form of discounts, concessions or commissions from the
Sellers or the purchasers of their shares, or both. That compensation may or may
not exceed customary compensation. The Sellers and any brokers or dealers who
act in connection with the sale of the Sellers' shares of our common stock may
be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, and any discounts, concessions or commissions they receive or
profit they realize from the resale of our shares may be deemed to be
underwriting discounts and commissions under the Securities Act. Under certain
circumstances, the Sellers may agree to indemnify such brokers or dealers
against certain liabilities. These liabilities may include liabilities under the
Securities Act.
The Sellers may use this prospectus from time to time to sell their
common stock. In addition to selling their common shares under this prospectus,
the Sellers may, to the extent permitted by Rule 144 under the Securities Act,
sell their shares pursuant to Rule 144. To the extent that it is legal to do so,
the Sellers may also transfer their common shares in other ways not involving
market makers or established trading markets.
To the extent required by law, we will prepare, provide with this
prospectus and file with the Commission a prospectus supplement disclosing any
additional material facts or circumstances concerning the plan of distribution
or otherwise.
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.
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DESCRIPTION OF SECURITIES
Effective July 28, 2000, we issued warrants to purchase shares of our
common stock pursuant to an Amendment to Stock Purchase Documents we entered
into with Sam Perricone, Sr., Henry Beyer and the Sam Perricone Children's
Trust. The warrants are for an aggregate of 300,000 shares (subject to
anti-dilution provisions) and have an exercise price of $2.50 per share (subject
to anti-dilution provisions). The warrants may be exercised at any time after
issuance and expire on July 28, 2007. For a description of our common stock, see
our Registration Statement on Form 8-A filed with the Commission on May 14, 1994
and incorporated by reference into this prospectus.
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 December 31, 1999 and January 1, 1999, and for each of the
years in the three-year period ended December 31, 1999, have been incorporated
by reference herein and in the registration statement in reliance upon the
report of KPMG LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
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FRESH AMERICA CORP.
300,000 SHARES
COMMON STOCK
PROSPECTUS
SEPTEMBER 7, 2000
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS. FRESH
AMERICA CORP. HAS NOT AUTHORIZED ANYONE TO PROVIDE PROSPECTIVE INVESTORS WITH
ANY DIFFERENT OR ADDITIONAL INFORMATION. THIS PROSPECTUS IS NOT AN OFFER TO SELL
NOR IS IT SEEKING AN OFFER TO BUY THESE SECURITIES IN ANY JURISDICTION WHERE THE
OFFER OR SALE IS NOT PERMITTED. THE INFORMATION CONTAINED IN THIS PROSPECTUS IS
CORRECT ONLY AS OF THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF THE
DELIVERY OF THIS PROSPECTUS OR ANY SALE OF THESE SECURITIES.
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TABLE OF CONTENTS
PAGE
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Where You Can Find More Information............. 2
Documents Incorporated by Reference............. 3
The Company..................................... 4
Risk Factors.................................... 5
Selling Shareholders............................ 9
Use of Proceeds................................. 10
Determination of Offering Price................. 10
Plan of Distribution............................ 10
Description of Securities....................... 12
Legal Matters................................... 12
Experts......................................... 12
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<PAGE> 15
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
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.
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Registration fee $ 189
Accounting fees and expenses 2,500
Legal fees and expenses 6,000
Miscellaneous expenses 500
------
Total $9,189
======
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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 a 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 indemnification by us is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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:
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(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 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
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<PAGE> 17
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.
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 September 7, 2000.
FRESH AMERICA CORP.
By: /s/ John H. Gray
--------------------------------------------
John H. Gray,
Executive Vice President and
Chief Financial Officer
(Principal Financial and Accounting Officer)
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<PAGE> 18
POWER OF ATTORNEY
We, the undersigned officers and directors of Fresh America Corp.,
hereby severally constitute and appoint Colon Washburn, David I. Sheinfeld and
John H. 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:
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Signature Title Date
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<S> <C> <C>
/s/ Colon Washburn Chief Executive Officer September 7, 2000
------------------------------- and Director
Colon Washburn (Principal Executive Officer)
/s/ John H. Gray Executive Vice President and September 7, 2000
------------------------------- Chief Financial Officer
John H. Gray (Principal Financial and Accounting Officer)
/s/ Thomas M. Hubbard Director September 7, 2000
-------------------------------
Thomas M. Hubbard
/s/ Sheldon I. Stein Director September 7, 2000
-------------------------------
Sheldon I. Stein
/s/ Lawrence V. Jackson Director September 7, 2000
-------------------------------
Lawrence V. Jackson
/s/ David I. Sheinfeld Chairman of the Board and President September 7, 2000
-------------------------------
David I. Sheinfeld
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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4.1 Fresh America Corp. Common Stock Purchase Warrant, issued
July 28, 2000 to Sam Perricone, Sr. to purchase 105,000
shares of common stock (filed as part of Exhibit 10.3 to the
Company's Quarterly Report on Form 10-Q, dated as of August
11, 2000 and incorporated herein by reference)
4.2 Fresh America Corp. Common Stock Purchase Warrant, issued
July 28, 2000 to the Sam Perricone Children's Trust to
purchase 105,000 shares of common stock (filed as part of
Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q,
dated as of August 11, 2000 and incorporated herein by
reference)
4.3 Fresh America Corp. Common Stock Purchase Warrant issued
July 28, 2000 to Henry Beyer to purchase 90,000 shares of
common stock (filed as part of Exhibit 10.3 to the Company's
Quarterly Report on Form 10-Q, dated as of August 11, 2000
and incorporated herein by reference)
*5.1 Opinion of Hughes & Luce, L.L.P.
10.1 Amendment to Stock Purchase Documents, dated to be effective
July 28, 2000, among Fresh America Corp., Sam Perricone,
Sr., the Sam Perricone Children's Trust and Henry Beyer
(filed as part of Exhibit 10.1 to the Company's Quarterly
Report on Form 10-Q, dated as of August 11, 2000 and
incorporated herein by reference)
*23.1 Consent of Hughes & Luce, L.L.P. (included in Exhibit 5.1)
*23.2 Consent of KPMG LLP
*24.1 Power of Attorney (included in Part II of this Registration
Statement)
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* Filed Herewith.
