EXHIBIT G
VOTING AGREEMENT
AND IRREVOCABLE PROXY
This Voting Agreement and Irrevocable Proxy ("Agreement") is made and
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entered into as of September 10, 2001 by and between North Texas Opportunity
Fund LP, a Texas limited partnership ("NTOF"), and the undersigned beneficial
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owner of shares of common stock (the "Shareholder") of Fresh America Corp., a
Texas corporation (the "Company").
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RECITALS
A. The Company, NTOF, and each of Xxxx Xxxxxxx Life Insurance Company ("JH
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Life"), Xxxx Xxxxxxx Variable Life Insurance Company ("JH Variable"), Signature
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1A (Cayman), Ltd. ("Cayman"), Signature 3 Limited ("Signature 3") and Investors
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Partner Life Insurance Company ("Investors" and, together with JH Life, JH
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Variable, Cayman and Signature 3, individually a "Xxxxxxx Entity" and
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collectively, the "Xxxxxxx Entities") have entered into a Securities Exchange
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and Purchase Agreement, dated as of August 14, 2001 (the "Securities Purchase
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Agreement"), and a Shareholders Agreement, dated as of August 14, 2001 (the
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"Shareholders Agreement" and, together with the Securities Purchase Agreement,
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the "Agreements") pursuant to which, among other things, (i) NTOF has agreed to
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invest $5 million in cash in the Company in exchange for 50,000 shares of the
Company's Series D Preferred Stock and warrants exercisable into 50% of the
Company's fully diluted common stock and (ii) the Xxxxxxx Entities have agreed
to exchange all securities previously issued by the Company to the Xxxxxxx
Entities (including, without limitation, $20 million of the Company's 12% Senior
Subordinated Notes due May 1, 2007) for 27,000 shares of the Company's Series D
Preferred Stock and warrants exercisable into 27% of the Company's fully diluted
common stock. Pursuant to the Agreements, and upon consummation of the
transactions contemplated thereby, NTOF will have the right to appoint three
directors to the Company's five-member board of directors and the Xxxxxxx
Entities will have the right to appoint one director to the Company's board.
B. The Shareholder is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such
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number of shares of the outstanding common stock of the Company as is indicated
on the final page of this Agreement (the "Shares").
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C. As a material inducement to consummating the transactions contemplated
by the Agreements, NTOF desires that the Shareholder agree, and the Shareholder
is willing to agree, not to transfer or otherwise dispose of any of the Shares
or any New Shares (as defined in Section 1.2) prior to the Expiration Date (as
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defined in Section 1.1), except as otherwise permitted hereby, and to vote the
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Shares and any New Shares so as to facilitate consummation of the transactions
contemplated by the Agreements.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, the parties agree as follows:
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1. Agreement to Retain Shares and New Shares.
1.1 Transfer and Encumbrance. Except as otherwise set forth in Section 1.3,
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the Shareholder agrees not to transfer, sell, exchange, pledge or otherwise
dispose of (collectively, "Transfer") or encumber any of the Shares or any New
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Shares, in each case over which the Shareholder possesses dispositive power, or
to make any offer or agreement relating thereto, at any time prior to the
Expiration Date. As used herein, the term "Expiration Date" shall mean the
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earlier to occur of (i) such date and time as (a) the transactions contemplated
by the Agreements have been approved by the shareholders of the Company and (b)
all filings with any governmental authorities or agencies necessary to
facilitate the purposes and intent of the Agreements have been made and are
effective, (ii) such date and time as NTOF, any of the Xxxxxxx Entities or the
Company elects not to consummate the transactions contemplated by the Agreements
or (iii) December 31, 2001.
1.2 Additional Purchases. The Shareholder agrees that any shares of capital
stock of the Company that Shareholder purchases or with respect to which the
Shareholder otherwise acquires beneficial ownership after the execution of this
Agreement and prior to the Expiration Date (collectively, "New Shares") shall be
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subject to the terms and conditions of this Agreement to the same extent as if
they constituted Shares.
1.3 Permitted Transfers. Notwithstanding anything contained or implied
herein to the contrary, the Shareholder shall be permitted to Transfer any
Shares or any New Shares, in each case over which the Shareholder possesses
dispositive power, to any third party (i) that agrees (pursuant to a written
agreement in form and substance reasonably satisfactory to NTOF and the Company)
to be bound by the terms and conditions of this Agreement or (ii) if such
Transfer is required pursuant to any judgement, rule, order or other decree
issued or otherwise promulgated by any governmental authority having
jurisdiction over the Shareholder or such Shares or New Shares. The Shareholder
hereby agrees to give each of NTOF and the Company five (5) business days' prior
written notice of any proposed or required Transfer of any Shares or any New
Shares.
2. Agreement to Vote Shares and New Shares. At every meeting of the
shareholders of the Company called with respect to, and at every adjournment
thereof, and on every action or approval by written consent of the shareholders
of the Company with respect to, approval of the transactions contemplated by the
Agreements and any matter that could reasonably be expected to facilitate the
transactions contemplated by the Agreements, the Shareholder shall vote the
Shares and any New Shares, in each case over which the Shareholder possesses
voting power, (i) in favor of approval of the transactions contemplated by the
Agreements and any matter that could reasonably be expected to facilitate the
transactions contemplated by the Agreements and (ii) against any agreement,
arrangement or other transaction that, directly or indirectly, is inconsistent
with the Agreements or the transactions contemplated thereby or that is
reasonably likely to impede, interfere with, delay or postpone the transactions
contemplated by the Agreements. Without limiting the foregoing, the Shareholder
shall vote the Shares and any New Shares, in each case over which the
Shareholder possesses voting power, in favor of amending the Company's existing
Articles of Incorporation, among other things, (a) to increase the number
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of authorized shares of common stock of the Company to a number sufficient to
accommodate the issuance of the common stock issuable to NTOF and the Xxxxxxx
Entities under their respective warrants and (b) to decrease the stated par
value of the common stock of the Company from $.01 per share to $.0001 per
share. The Shareholder agrees not to take any actions contrary to the
Shareholder's obligations under this Agreement.
3. Irrevocable Proxy. THE SHAREHOLDER HEREBY GRANTS TO AND APPOINTS XXXXXX
X. XXXXXXXXXXXXX AND XXXX X. XXXXXXXX, AND EACH OF THEM INDIVIDUALLY, AS SUCH
SHAREHOLDER'S SOLE AND EXCLUSIVE PROXIES AND ATTORNEYS-IN-FACT (WITH FULL POWER
OF SUBSTITUTION) TO VOTE OR TO ACT BY WRITTEN CONSENT WITH RESPECT TO, IN EACH
CASE TO THE FULLEST EXTENT PERMITTED BY AND SUBJECT TO APPLICABLE LAW, THE
SHARES AND ANY NEW SHARES, IN EACH CASE over which THE Shareholder possesses
voting power, IN RESPECT OF ANY MATTER SPECIFIED IN SECTION 2. THIS PROXY IS
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COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE THROUGH THE EXPIRATION DATE.
THE SHAREHOLDER FURTHER AGREES TO TAKE SUCH OTHER ACTION AND EXECUTE SUCH OTHER
INSTRUMENTS, IN EACH CASE AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS
VOTING AGREEMENT AND IRREVOCABLE PROXY, AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY THE SHAREHOLDER WITH RESPECT TO THE SHARES OR ANY NEW SHARES THAT IS
INCONSISTENT WITH THE INTENT HEREOF.
4. Representations, Warranties and Covenants of the Shareholder. The
Shareholder hereby represents, warrants and covenants to NTOF that the
Shareholder (i) is the beneficial owner of the Shares, which Shares, to the best
of the Shareholder's knowledge, are, as of the date hereof, and will be, at all
times until the Expiration Date, free and clear of any liens, claims, options,
charges or other encumbrances; (ii) does not, as of the date hereof,
beneficially own any shares of capital stock of the Company other than the
Shares (excluding shares as to which Shareholder currently disclaims beneficial
ownership in accordance with applicable law); and (iii) has full power and
authority to make, to enter into and to carry out the terms of this Agreement
and the Proxy.
5. Additional Documents. The Shareholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of NTOF and the Company, as the case may be, to carry out the
intent of this Agreement.
6. Consent and Waiver. The Shareholder hereby gives any consents or waivers
that are reasonably required for the consummation of the transactions
contemplated by the Agreements under the terms of any agreements to which the
Shareholder is a party or pursuant to any rights the Shareholder may have.
7. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
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8. Miscellaneous.
8.1 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
8.2 Binding Effect and Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but, except as otherwise
specifically provided herein, neither this Agreement nor any of the rights,
interests or obligations of the parties hereto may be assigned by either of the
parties without prior written consent of the other.
8.3 Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
8.4 Specific Performance: Injunctive Relief. The parties hereto acknowledge
that NTOF will be irreparably harmed and that there will be no adequate remedy
at law for a violation of any of the covenants or agreements of Shareholder set
forth herein. Therefore, it is agreed that, in addition to any other remedies
that may be available to NTOF upon any such violation, NTOF shall have the right
to enforce such covenants and agreements by specific performance, injunctive
relief or by any other means available to NTOF at law or in equity.
8.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and delivered in person, by cable,
telegram or telex, or sent by mail (registered or certified mail, postage
prepaid, return receipt requested) or overnight courier (prepaid) to the
respective parties as follows:
If to NTOF: North Texas Opportunity Fund LP
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxxxx Xxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: R. Xxxxxxx Xxxx
Facsimile: (000) 000-0000
If to the Shareholder: At the address provided on the signature
page hereto
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
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8.6 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Texas without giving effect
to the conflicts of laws principles thereof.
8.7 Entire Agreement. This Agreement contains the entire understanding of
the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such subject
matter.
8.8 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, and all of which, taken together, shall
constitute one and the same agreement.
8.9 Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction of interpretation of this Agreement.
8.10 Section References. Unless the context clearly requires otherwise, all
section references contained in this Agreement refer to the applicable sections
of this Agreement.
[The next page is the signature page]
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NORTH TEXAS OPPORTUNITY FUND LP
By: North Texas Opportunity Fund Capital
Partners LP, its general partner
By: NTOF LLC, its general partner
By: /s/ Xxxxxx X. Xxxxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxxxx
Title: Manager
SHAREHOLDER
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Name:
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[Insert name if an individual]
Xxxxxx & McBaine Capital Management
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[Insert name if a corporation, partnership or
other entity]
By: /s/ X. Xxxxxxxxx XxXxxxx
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Name: X. Xxxxxxxxx McBaine
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Title: Manager
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Shareholder's Address for Notice:
50 Xxxxxx Place
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Xxx Xxxxxxxxx, XX 00000
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Number of Shares Beneficially Owned as of the
Date Hereof:
767,400 shares of Common Stock
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Number of Shares Beneficially Owned as of the Date
Hereof Over Which Such Shareholder Possesses
Dispositive Power:
767,400 shares of Common Stock
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Number of Shares Beneficially Owned as of the Date
Hereof Over Which Such Shareholder Possesses Voting
Power:
767,400 shares of Common Stock
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