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EXHIBIT 10.1
AMENDMENT TO STOCK PURCHASE DOCUMENTS
This Amendment to Stock Purchase Documents (this "Agreement") is made
to be effective as of July 28, 2000 among Fresh America Corp., a Texas
corporation ("Fresh"), and Xxx Xxxxxxxxx, Xx., Xxxxx Xxxxx, and the Xxx
Xxxxxxxxx Children's Trust (collectively "Sellers").
RECITALS
This Agreement is made with reference to the following facts, which are
acknowledged and adopted by the parties as a material part of this Agreement:
A. On October 30, 1998, Fresh and Sellers entered into a Stock Purchase
Agreement (the "Stock Purchase Agreement), which includes a main agreement with
many exhibits, notes, schedules, appendices, and related agreements
(collectively the "Stock Purchase Documents") by which, among other things,
Fresh purchased all of the outstanding capital stock of Xxx Xxxxxxxxx Citrus
Company, a California corporation ("Perricone Citrus").
B. As part of the consideration given by Fresh for the purchase of the
capital stock pursuant to the Stock Purchase Documents, Fresh executed and
delivered three Promissory Notes, in the aggregate amount of $3,500,000 (the
"Original Notes").
C. Subsequent to the closing under the Stock Purchase Documents, the
parties have engaged in discussions relating to their respective promises,
representations and performances under the Stock Purchase Documents, and the
parties now desire to adjust the amount and terms of the Original Notes, among
other things, as set forth herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, and in consideration of the releases, and payments to be made
hereby, the parties further agree as set forth hereinbelow.
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AGREEMENT
1. The parties agree that the Original Notes will be amended and
restated and will be marked "cancelled" and returned by Sellers to Fresh. Fresh
will execute and deliver to each Seller a new Amended and Restated Promissory
Note in the form set forth as Exhibit A to this Agreement (collectively, the
"New Notes"), which New Notes provide, among other things, the following:
1.1 Payment of an aggregate sum of $1,500,000, in aggregate amounts
payable as follows:
(a) $100,000, on the first business day after the effective
date of this Agreement;
(b) 24 monthly payments of $37,500 due on the first day of each
calendar month commencing September 1, 2000 and continuing
thereafter until August 1, 2002;
(c) $350,000 payable on January 1, 2002;
(d) $150,000, payable on August 1, 2002;
(e) Interest will accrue on the unpaid principal balance at the
rate of 10% per annum, but will be cancelled if each
payment above is made in a timely manner as set forth in
each New Note; and
(f) The individual New Notes will be prorated so that the above
aggregate amounts are paid, as they become due, in the
following proportions: Xxx Xxxxxxxxx, Xx. -35%, Xxx
Xxxxxxxxx Childrens' Trust- 35%, and Xxxxx Xxxxx -30%.
1.2 The amounts due under the New Notes will not be withheld, excused
or offset by Fresh for any amounts due, or claimed to be due, to Fresh from
Sellers for indemnification or other claims based on duties arising from or
breaches of the Stock Purchase Documents.
2. Within five business days of the effective date of this Agreement,
Fresh will cause to be delivered to the Sellers warrants in the form set forth
as Exhibit B for the issuance of an aggregate of 300,000 shares of common stock
of Fresh (collectively, the "Warrants"). The Warrants will have an exercise
price of $2.50 and a duration of seven years. The shares of Fresh common stock
to be issued pursuant to the Warrants shall also be prorated to each of the
Sellers as follows: Xxx Xxxxxxxxx, Xx. - 105,000 shares; the Xxx Xxxxxxxxx
Children's Trust - 105,000 shares; and Xxxxx Xxxxx - 90,000 shares.
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3. Fresh America shall register the shares of Fresh common stock to be
issued upon exercise of the Warrants on a shelf registration statement on Form
S-3 as promptly as practicable. As set forth in the Warrants, (a) Fresh will
have the right to delay any such registration for up to 120 days upon a
certification by Fresh that the registration would materially and adversely
affect Fresh or if Fresh is engaged in an underwritten public offering; and (b)
each Seller shall provide Fresh with written notice at least 72 hours prior to
any proposed sale under the shelf registration statement and, at Fresh's
request, will delay such sale for up to 45 days if necessary to insure that the
disclosure in the shelf registration statement is current. All expenses related
to registration in connection with such registration rights (except underwriting
discounts and commissions) will be borne by Fresh, to the extent allowable under
applicable laws and regulations.
4. The parties agree and acknowledge that the Sublease Agreement, dated
November 12, 1998, by and between Perricone Citrus, a wholly-owned subsidiary of
Fresh, and GB & P Citrus Company, Inc., a California corporation owned by
Sellers ("GB&P"), for Bay numbers 111, 112 and 113 in the Los Angeles Wholesale
Produce Market, will be extinguished and no longer of force and effect as of
August 1, 2000. The parties will, and will cause Perricone Citrus and GB&P to,
cooperate in achieving and documenting the extinguishment of such Sublease
Agreement. The parties acknowledge that the current third party subtenant of
Fresh occupying such Bay numbers 111, 112 and 113 will at all times hereafter
attorn to and pay rent directly to GB & P.
5. It is the intention of the parties that to the extent that the
provisions of this Agreement, the New Notes, the Warrants, and any other
documents prepared in connection with this Agreement, contradict, neutralize or
are inconsistent with any provisions of the Stock Purchase Documents, that the
provisions of this Agreement, the New Notes, the Warrants and the documents
created in relation to this Agreement shall govern, supersede, modify, replace,
and be superior. Except as expressly modified and superseded by this Agreement,
the New Notes, the Warrants and the documents created in relation to this
Agreement, the terms and provisions of the Stock Purchase Documents are hereby
ratified and confirmed by the parties and shall continue in full force and
effect. Each of the parties agrees that the Stock Purchase Documents, as amended
and modified hereby, shall continue to be legal, valid, binding and enforceable
in accordance with their terms.
6. In consideration of this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Fresh, together with any entity directly or indirectly controlled by or under
common control with Fresh hereby releases, acquits and forever discharges each
of the Sellers, together with any entity controlled by any Seller, from and for
any and all liability arising from any claim or cause of action whether xxxxxx
or inchoate, known or unknown, which it now has or has had, under, or arising
out of: (a) Sections 2.8, 2.10, 2.21, 2.24 or 2.26 of the Stock Purchase
Agreement; (b) all of the facts, allegations, contentions, conclusions,
inferences, theories or hypothesis set forth in the Status Report, April 2000,
prepared by Xxxxx Xxxxx of Xxxxx & Xxxxx Chartered Accounts as of April 24,
2000, including, without limitation, any breaches or claimed breaches of the
Stock Purchase Agreement based upon the facts, allegations, contentions,
conclusions, inferences, theories or hypothesis set forth in such report; and
(c) Perricone Citrus's cost of freight for incoming produce for 1999 as
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compared to prior years, including, without limitation, any breaches or claimed
breaches of the Stock Purchase Agreement based upon such cost of freight. As of
the date hereof, Fresh has no actual knowledge of any material breaches of the
Stock Purchase Agreement, except as set forth in the foregoing clauses (a), (b)
and (c).
7. In consideration of this Agreement, the New Notes, the Warrants and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Sellers, together with any entity directly or
indirectly controlled by any Seller hereby release, acquit and forever discharge
Fresh, any entity directly or indirectly controlled by or under common control
with Fresh and all directors, officers, agents and employees of Fresh or any
such entity from and for any and all liability arising from any claim or cause
of action, whether xxxxxx or inchoate, known or unknown, which it now has or
ever has had, under, or arising out of the Original Notes.
8. This Agreement shall be binding upon third parties, successors,
assigns, heirs, parents, subsidiaries, lenders, partners, spouses, and the
promises and representations made herein shall survive the execution of this
Agreement.
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Xxx Xxxxxxxxx, Xx., in his individual capacity
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Xxxxx Xxxxx, in his individual capacity
XXX XXXXXXXXX CHILDRENS' TRUST
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Xxxx Xxxxx, as Trustee
FRESH AMERICA CORP.
By:
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Name:
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Title:
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EXHIBIT A
Form of New Notes
(See Attached)
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EXHIBIT B
Form of Warrants
(See Attached)
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