THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED, QUALIFIED, APPROVED OR DISAPPROVED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER SUCH ACT OR LAWS AND NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER FEDERAL OR STATE REGULATORY AUTHORITY HAS PASSED ON OR ENDORSED THE MERITS OF THESE SECURITIES.
This WARRANT AGREEMENT ("Agreement") is made and entered into as of February 3, 2021 (the "Effective Date") by and between FreshRealm, LLC ("Company") and Calavo Growers, Inc. ("Holder"), who may be referred to herein collectively as the "Parties" and each, a "Party".
WHEREAS, executed simultaneously in connection herewith, Company and Holder have entered into that ce1tain Limited Liability Company Member Separation and Release Agreement (the "Separation Agreement");
WHEREAS, in connection with the terms thereunder and as additional consideration to Holder for entering into the Separation Agreement, the Company has agreed to issue to Holder a warrant (the "Warrant") evidencing the automatic issuance without fmther action by the Company, and Holder's right to receive, Four Million Two Hundred Seven Thousand Three Hundred Ninety-Seven (4,207,397) Units (described fmther below) in the Company, subject to adjustment, evidencing a membership and ownership interest in the Company, upon the happening of ce1tain events, as also described in the Separation Agreement, and subject to the terms hereof; and
WHEREAS, the term "Units" is further described and has the meaning defined in that certain Eighth Amended and Restated Limited Liability Company Agreement of the Company dated February 3, 2021 (the "LLC Agreement"), executed simultaneously in connection herewith, and represents a Member's ownership interest in the Company. Any capitalized terms used herein, but not otherwise defined, shall have the meanings given to them in the Separation Agreement.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants, agreements, promises, representations and releases contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Pa1ties hereto agree as follows:
Grant and Receipt of Warrant.
1.1For value received, Company hereby grants to the Holder, and Holder is hereby entitled, upon the terms and subject to the conditions set fo1th herein, to be issued and automatically receive, without fmther action by the Company, Four Million Two Hundred Seven Thousand Three