EXHIBIT 10.3
POST-CLOSING AGREEMENT
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THIS POST-CLOSING AGREEMENT (the "Agreement") is made as of September
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5, 2001, by and among FRESH AMERICA CORP., a Texas corporation (the "Company"),
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NORTH TEXAS OPPORTUNITY FUND LP, a Texas limited partnership ("NTOF"), XXXX
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XXXXXXX LIFE INSURANCE COMPANY ("JH Life"), XXXX XXXXXXX VARIABLE LIFE INSURANCE
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COMPANY ("JH Variable"), SIGNATURE 1A (CAYMAN), LTD. ("Cayman"), SIGNATURE 3
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LIMITED ("Signature 3") and INVESTORS PARTNER LIFE INSURANCE COMPANY
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("Investors") (NTOF, JH Life, JH Variable, Cayman, Signature 3 and Investors are
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sometimes individually or collectively referred to herein as "Purchaser").
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RECITALS
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Reference is hereby made to the Securities Exchange and Purchase
Agreement, dated as of August 14, 2001, by and among Company and Purchaser (as
renewed, modified, amended or extended, the "Securities Purchase Agreement").
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At the present time, Company is unable to perform all of the
obligations and conditions required by Purchaser in documenting the Securities
Purchase Agreement and the transactions evidenced thereby and Company has
requested that Purchaser close the Securities Purchase Agreement and the
transactions evidenced thereby (and that the Securities Purchase Agreement be
made effective) notwithstanding such failure by Company to perform all of such
obligations and conditions.
Purchaser is willing to close the transactions evidenced by the
Securities Purchase Agreement and the documents and agreements executed in
connection therewith (collectively, the "Securities Purchase Documents") and is
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willing to make the Securities Purchase Agreement effective as of the date
hereof provided that adequate assurances and procedures are established to
insure the expeditious compliance by Company in the future with such obligations
and conditions.
AGREEMENTS
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In consideration of the forgoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. Definitions. All capitalized terms used herein, unless
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otherwise specifically defined herein, shall have the meanings ascribed to them
in the Securities Purchase Agreement.
2. Effectiveness of Securities Purchase Agreement; Post
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Closing Conditions. The parties hereto agree that, notwithstanding
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anything to the contrary in the Securities Purchase
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Agreement or in any other Securities Purchase Document, Company must satisfy the
conditions set forth on Exhibit A attached hereto and incorporated herein by
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reference (the "Post Closing Conditions") within the time periods corresponding
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thereto. The parties hereto also agree that, notwithstanding anything to the
contrary in the Securities Purchase Agreement, the Securities Purchase Agreement
shall be effective as of the date hereof notwithstanding Company's failure to
satisfy the Post-Closing Conditions on or prior to the date hereof. Failure by
Company to satisfy any of the Post Closing Conditions within the time periods
corresponding thereto (as set forth on Exhibit A attached hereto) shall
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constitute (i) an immediate violation of the Securities Purchase Agreement,
without any period of grace or other cure period and (ii) a failure by the
Company in a material respect to perform its obligations under the Securities
Purchase Agreement for purposes of Article V therein.
3. Modification. This Agreement may not be modified or amended
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except by a writing signed by all of the parties hereto.
4. Counterparts. This Agreement may be executed in any number of
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counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which counterparts taken together shall constitute but one and the same
instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed in Dallas,
Texas, on the day and year specified at the beginning of this Agreement.
THE COMPANY:
FRESH AMERICA CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
NTOF:
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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Xxxxxx X. Xxxxxxxxxxxxx
Manager
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XXXXXXX ENTITIES:
XXXX XXXXXXX LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. XxXxxx
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Title: Director
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XXXX XXXXXXX VARIABLE LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. XxXxxx
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Title: Authorized Signatory
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SIGNATURE 1A (CAYMAN), LTD.
By: Xxxx Xxxxxxx Life Insurance
Company, Portfolio Advisor
By: /s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. XxXxxx
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Title: Director
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SIGNATURE 3 LIMITED
By: Xxxx Xxxxxxx Life Insurance
Company, Portfolio Advisor
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Managing Director
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INVESTORS PARTNER LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. XxXxxx
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Title: Authorized Signatory
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5
EXHIBIT A
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POST CLOSING CONDITIONS
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OBLIGATIONS TO BE PERFORMED TIME FOR PERFORMANCE TO BE COMPLETED
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1. Each Purchaser shall have received 5:00 p.m. Dallas, Texas time
the following documents, each of on to October 5, 2001
which shall be in form and substance
satisfactory to each Purchaser, in
its sole discretion:
(a) Copies of all Employment Agreements to be executed
by the Company and each Management Employee.
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