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EXHIBIT 10.38
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is made and entered into as of the 17th
day of July, 1997, among PACKAGED ICE, INC., a Texas corporation (the
"Company"), and SV Capital Partners, L.P., a Texas limited partnership, (the
"Investor").
W I T N E S S E T H:
WHEREAS, to obtain additional equity financing, the Company desires to
issue and sell 300,000 shares of its $.01 par value Common Stock ("Common
Stock") and a warrant to purchase 100,000 shares of Common Stock at an exercise
price of $14 per share (the "Warrant") to the Investor, and the Investor
desires to purchase such Common Stock and Warrant, at the price, on the terms,
and subject to the conditions as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements, representations and warranties herein contained, the
parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF SECURITIES
1.1 Issuance and Sale of Securities. At the Closing, subject to
the terms and conditions of this Agreement and on the basis of the
representations and warranties set forth herein, the Company agrees to issue
and sell to the Investor, and the Investor agrees to purchase from the Company,
300,000 shares of Common Stock and the Warrant for a total purchase price of
$3,000,000. The 300,000 shares of Common Stock and the Warrant are sometimes
collectively hereinafter referred to as the "Securities."
1.2 Delivery and Payment. At the Closing, the Company will
execute and deliver to the Investor a certificate evidencing the 300,000 shares
of Common Stock purchased hereunder and the Warrant in the form of Exhibit A
attached thereto, against payment, in immediately available funds, by the
Investor to the Company of $3,000,000.
1.3 Closing. The consummation of the issuance, sale and purchase
of the Common Stock to be purchased pursuant to this Agreement shall be
effected (the "Closing") at the offices of Akin, Gump, Strauss, Xxxxx & Xxxx,
L.L.P., 000 Xxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxx 00000 commencing at 10:00
a.m., on July 17, 1997 (the "Closing Date") or at such other time or place as
the Company and the Investors shall mutually agree.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investors as follows:
2.1 Organization and Standing of the Company. The Company and
each of its subsidiaries is a corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation and has all
requisite corporate power and authority to issue the Securities and to own its
properties and assets and to carry on its business as now conducted and as
proposed to be conducted. The Company and each of its subsidiaries is duly
qualified to transact business and is in good standing in all jurisdictions in
which such qualification is required. The copies of the Articles of
Incorporation and Bylaws of the Company and each of its subsidiaries delivered
to the Investors prior to the execution of this Agreement are true and complete
copies of the duly and legally adopted Articles of Incorporation and Bylaws of
the Company and its subsidiaries in effect as of the date of this Agreement.
2.2 Capitalization of the Company. The authorized capital stock
of the Company consists of 50,000,000 shares of Common Stock, par value $.01
per share (the "Common Stock"), of which 3,815,270 shares are issued and
outstanding, and 5,000,000 shares of preferred stock, par value $.01 per share.
The Company's Board of Directors has authorized the designation of 450,000
shares of the preferred stock as the Series A Convertible Preferred Stock (the
"Series A Preferred Stock"), and all of the authorized shares of Series A
Preferred Stock are issued and outstanding. The Company's Board of Directors
has authorized the designation of 200,000 shares of the preferred stock as the
Series B Convertible Preferred Stock, of which 124,831 shares are issued and
outstanding. Except as set forth on Section 2.2 of the Disclosure Schedule,
attached hereto and incorporated herein by reference (the "Disclosure
Schedule"), at the Closing there will be no other warrants, options,
subscriptions or other rights or preferences (including conversion or
preemptive rights) outstanding to acquire capital stock of the Company or its
subsidiary, or notes, securities or other instruments convertible into or
exchangeable for capital stock of the Company, nor any commitments, agreements
or understandings by or with the Company with respect to the issuance thereof,
nor any obligation to repurchase or redeem any capital stock of the Company.
Except as set forth on Section 2.2 of the Disclosure Schedule, no shareholders
of the Company have any right to require the registration of any securities of
the Company or to participate in any such registration. All outstanding
securities of the Company have been issued in full compliance with an exemption
or exemptions from the registration and prospectus delivery requirements of the
Securities Act and from the registration and qualification requirements of all
applicable state securities laws.
2.3 Duly Issued. All of the issued and outstanding shares of
Common Stock have been duly authorized, are validly issued, fully paid and
non-assessable. Upon issuance and delivery to the Investor of the 300,000
shares of Common Stock against payment of the purchase price therefor pursuant
to this Agreement, such shares will be validly issued, fully paid and
non-assessable, and free and clear of all claims, liens, pledges, options,
charges, security interests, mortgages, deeds of trust, encumbrances or rights
of any third party of any nature whatsoever.
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The issuance and sale of the Common Stock pursuant hereto will not give rise to
any preemptive rights or rights of first refusal and will not violate any laws
to which the Company or any of its assets are subject. The shares of Common
Stock issuable upon exercise of the Warrant have been reserved for issuance,
and when issued upon exercise, will be duly authorized, validly issued and
outstanding, fully paid and nonassessable.
2.4 Authorization. This Agreement has, and each other agreement
required to be entered into by the Company pursuant to the terms and conditions
hereof, when executed and delivered by the Company, will have been duly
authorized, executed and delivered by and on behalf of the Company, and will
constitute the valid and binding agreements of the Company, enforceable in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally. The Company has the requisite corporate power and authority
to enter into this Agreement and to perform its obligations hereunder.
2.5 Subsidiaries. Except as set forth on Section 2.5 of the
Disclosure Schedule, the Company has no subsidiaries and does not, directly or
indirectly, own any interest in any corporation, partnership, firm or other
business entity. The Company is not a participant in any joint venture,
partnership, or similar agreement. Section 2.5 of the Disclosure Schedule
accurately sets forth the name of each corporation, partnership, firm or other
business entity in which the Company has an interest, the state of
organization, and the percentage ownership by the Company.
2.6 Financial Position.
(a) The Company has furnished to the Investor the
financial statements described in Section 2.6 of the Disclosure Schedule
(collectively referred to herein as the "Financial Statements"). The Financial
Statements present fairly the financial position of the Company and its
subsidiaries as of such dates, respectively, all in conformity with generally
accepted accounting principles, consistently applied, following in the case of
the unaudited interim financial statements the Company's normal internal
accounting practices and year end adjustments.
(b) Except as set forth on Section 2.6 of the Disclosure
Schedule, since March 31, 1997, no event or condition has occurred, and no
event or condition is to the knowledge of the Company's officers threatened,
which has had a materially adverse effect, or could reasonably be expected to
have a materially adverse effect, on the Company's or any subsidiary's
properties, assets, or financial position.
2.7 Tax Returns. Each of the Company and its subsidiaries has
timely filed all Tax Returns required by law and has paid all Taxes required to
be paid, together with any penalties and interest. The Tax Returns are true
and correct in all material respects. There is no pending dispute with any
taxing authority relating to any of the Company's or subsidiaries' Tax Returns.
There is no tax audit of any Tax Return of the Company or any subsidiaries
pending or currently in process. The Company and its subsidiaries have paid
all Taxes and assessments determined to be owing as a result of any prior
audit. The Company has not elected pursuant to the Internal Revenue Code of
1986, as amended (the "Code"), to be treated as an S corporation or a
collapsible
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corporation pursuant to Section 1362(a) or Section 341(f) of the Code, nor has
it made other elections that would have a material adverse effect on the
business, properties, prospects or financial condition of the Company or its
subsidiaries. The Company and its subsidiaries have withheld or collected from
each payment made to each employee, the amount of all Taxes, including, but not
limited to, federal income taxes, Federal Insurance Contribution Act taxes and
Federal Unemployment Tax Act taxes required to be withheld or collected
therefrom, and has paid the same to the proper tax receiving offices or
authorized depositories. For purposes of this Agreement, (i) the term "Taxes"
shall mean all taxes, charges, fees, levies or other assessments, including,
without limitation, income, gross receipts, excise, property, sales,
occupation, use, service, service use, license, payroll, franchise, transfer
and recording taxes, fees and charges imposed by the United States or any
state, local or foreign government or subdivision or agency thereof, whether
computed on a separate, consolidated, unitary, combined or any other basis; and
such term shall include any interest, liabilities, additional amounts,
penalties and additions to tax; and (ii) the term "Tax Return" shall mean any
report, return, information return or other document (including related or
supporting information) filed or required to be filed by the Company or its
subsidiaries with any governmental or regulatory authority or other authority
in connection with the determination, assessment or collection of any Taxes
(whether or not such Taxes are imposed on the Company or its subsidiaries) or
the administration of any law, regulation or administrative requirements
relating to any Taxes.
2.8 Title to Properties. Except as set forth on Section 2.8 of
the Disclosure Schedule, each of the Company and its subsidiaries has good and
marketable title to, and the exclusive use of, all of its tangible properties
and assets, free and clear of all mortgages, liens, claims and encumbrances
except, with respect to all such properties and assets (a) liens for current
taxes not yet due, (b) statutory and nonstatutory landlord liens, and (c) liens
on property which do not materially affect the operation of the business of the
Company.
2.9 ERISA
(a) The Company, each subsidiary and each ERISA Affiliate
have complied in all material respects with the Employee Retirement Income
Security Act of 1974, as amended from time to time ("ERISA") and, where
applicable, the Internal Revenue Code as amended ("Code") regarding each Plan.
"ERISA Affiliate" shall mean each trade or business (whether or not
incorporated) which together with the Company or any subsidiary would be deemed
to be a "single employer" within the meaning of Section 4001(b)(1) of ERISA or
subsections (b), (c), (m) or (o) of section 414 of the Code.
(b) Each Plan is, and has been, maintained in substantial
compliance with ERISA and, where applicable, the Code. "Plan" shall mean any
employee pension benefit plan, as defined in Section 3(2) of ERISA, which (i)
is currently or hereafter sponsored, maintained or contributed to by the
Company, any subsidiary or an ERISA Affiliate or (ii) was at any time during
the preceding six calendar years, sponsored, maintained or contributed to, by
the Company, any subsidiary or an ERISA Affiliate.
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(c) No act, omission or transaction has occurred which
could result in imposition on the Company, any subsidiary or any ERISA
Affiliate (whether directly or indirectly) of (i) either a civil penalty
assessed pursuant to section 502(c), (i) or (l) of ERISA or a tax imposed
pursuant to Chapter 43 of Subtitle D of the Code or (ii) breach of fiduciary
duty liability damages under section 409 of ERISA.
(d) No Plan (other than a defined contribution plan) or
any trust created under any such Plan has been terminated since September 2,
1974. No liability to the Pension Benefit Guaranty Corporation ("PBGC") (other
than for the payment of current premiums which are not past due) by the
Company, any subsidiary or any ERISA Affiliate has been or is expected by the
Company, any subsidiary or any ERISA Affiliate to be incurred with respect to
any Plan. No ERISA Event with respect to any Plan has occurred. "ERISA Event"
shall mean (i) a "Reportable Event" described in Section 4043 of ERISA and the
regulations issued thereunder, (ii) the withdrawal of the Company, any
Subsidiary or any ERISA Affiliate from a Plan during a plan year in which it
was a "substantial employer" as defined in Section 4001(a)(2) of ERISA, (iii)
the filing of a notice of intent to terminate a Plan or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, (iv) the institution of
proceedings to terminate a Plan by the PBGC or (v) any other event or condition
which might constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan.
(e) Full payment when due has been made of all amounts
which the Company, any subsidiary or any ERISA Affiliate is required under the
terms of each Plan or applicable law to have paid as contributions to such
Plan, and no accumulated funding deficiency (as defined in section 302 of ERISA
and section 412 of the Code), whether or not waived, exists with respect to any
Plan.
(f) The actuarial present value of the benefit
liabilities under each Plan which is subject to Title IV of ERISA does not, as
of the end of the Company's most recently ended fiscal year, exceed the current
value of the assets (computed on a plan termination basis in accordance with
Title IV of ERISA) of such Plan allocable to such benefit liabilities. The
term "actuarial present value of the benefit liabilities" shall have the
meaning specified in section 4041 of ERISA.
(g) None of the Company, any subsidiary or any ERISA
Affiliate sponsors, maintains, or contributes to an employee welfare benefit
plan, as defined in section 3(1) of ERISA, including, without limitation, any
such plan maintained to provide benefits to former employees of such entities,
that may not be terminated by the Borrower, a Subsidiary or any ERISA Affiliate
in its sole discretion at any time without any material liability.
(h) None of the Company, any subsidiary or any ERISA
Affiliate sponsors, maintains or contributes to, or has at any time in the
preceding six calendar years sponsored, maintained or contributed to, any
Multiemployer Plan. "Multiemployer Plan" shall mean a Plan defined as such in
Section 3(37) or 4001(a)(3) of XXXXX.
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(x) Xxxx of the Company, any subsidiary or any ERISA
Affiliate is required to provide security under section 401(a)(29) of the Code
due to a Plan amendment that results in an increase in current liability for
the Plan.
2.10 No Breach. Except as set forth on Section 2.10 of the
Disclosure Schedule, neither the Company nor its subsidiaries is in breach or
default of any term or provision of their respective Articles of Incorporation
or bylaws, or any material term or provision of any mortgage, indenture,
instrument, lease, contract, commitment or other agreement to which the Company
or any of its subsidiaries is a party or by which it is bound, or of any
provision of any governmental statute, rule or regulation applicable to or
binding upon the Company or any of its subsidiaries. Neither the execution and
delivery of this Agreement and the other agreements required to be executed and
delivered pursuant to the terms and conditions of this Agreement nor the
consummation of the transactions contemplated thereby will (a) conflict with,
or result in a breach of the terms, conditions or provisions of, or constitute
a default under, (i) the Articles of Incorporation or bylaws of the Company or
any of its subsidiaries, (ii) any agreement or instrument to which the Company
or any of its subsidiaries is now a party or by which any of them is bound, or
(iii) any provision of any judgment, decree, order, statute, rule or regulation
applicable to or binding on the Company or any of its subsidiaries, or (b)
result in the creation of any mortgage, pledge, lien, encumbrance, or charge
upon any of the properties or assets of the Company or any of its subsidiaries.
2.11 Litigation. Except as set forth on Section 2.11 of the
Disclosure Schedule, there is no litigation or other legal, administrative or
governmental proceeding pending or, to the knowledge of the officers of the
Company, threatened against or relating to the Company, its subsidiaries, or
their respective properties or business, that if determined adversely to the
Company or its subsidiaries may reasonably be expected to have a material
adverse effect on the present or future operations or financial condition of
the Company.
2.12 Court Orders, Decrees, Etc. There is no outstanding order,
writ, injunction or decree of any court, governmental agency or arbitration
tribunal against or adversely affecting the Company, its subsidiaries, or their
respective properties or business.
2.13 Franchises, Permits, and Consents. Each of the Company and
its subsidiaries possesses all governmental franchises, licenses, permits,
consents, authorizations, exemptions and orders, required by the Company and
its subsidiaries to carry on their businesses as now being conducted. All
registrations, designations and filings with all governmental authorities
required in the conduct of the businesses of the Company or its subsidiaries or
in connection with the consummation of the transactions contemplated by this
Agreement have been made or obtained.
2.14 Insurance. The Company and its subsidiaries have been and are
insured by financially sound and reputable insurers unaffiliated with the
Company in such amounts and against such risks as are sufficient for compliance
with law and as are adequate in the judgment of the Company to protect the
properties and businesses of the Company.
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2.15 Securities Law Compliance. The offer, issuance and sale of
the Securities to be issued hereunder has been made in compliance with all
applicable federal and state securities laws. Neither the Company nor anyone
acting on its behalf has offered any of the Securities (or similar securities)
for sale to, or solicited offers to buy any of the Securities (or similar
securities) from, any prospective purchaser, so as to make the issuance and
sale of the Securities hereunder subject to the registration requirements of
the Securities Act of 1933, as amended (the "Securities Act"), or applicable
state securities laws.
2.16 Finders' Fees. Except as set forth on Section 2.16 of the
Disclosure Schedule, the Company has incurred no liability for commissions or
other fees to any finder or broker in connection with the transactions
contemplated by this Agreement.
2.17 Intellectual Property. Except as set forth on Section 2.17 of
the Disclosure Schedule, to the actual knowledge of the Company's officers:
(a) The Company and its subsidiaries own or have the
right to use pursuant to license, sublicense, public domain, agreement, or
permission (i) all inventions (whether patentable or unpatentable and whether
or not reduced to practice), all improvements thereto, and all patents,
together with all reissuances, revisions, extensions, and reexaminations
thereof, (ii) all trademarks, service marks, trade dress, logos, trade names,
and corporate names, including all goodwill associated therewith, and all
applications, registrations, and renewals in connection therewith, (iii) all
copyrightable works, all copyrights, and all applications, registrations, and
renewals in connection there- with, (iv) all mask works and all applications,
registrations and renewals in connection therewith, (v) all trade secrets and
confidential business information (including ideas, research and development,
know-how, formulas, compositions, manufacturing and production processes and
techniques, technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information, and business and marketing plans
and proposals), (vi) all other proprietary rights, and (vii) all copies and
tangible embodiments thereof (in whatever form or medium) (collectively,
"Intellectual Property"), currently being used or reasonably anticipated to be
used in the operation of the Company's business.
(b) None of the Company and its subsidiaries has
knowingly interfered with, infringed upon, misappropriated, or otherwise come
into conflict with any Intellectual Property rights of third parties, and none
of the Company's officers has ever received any charge, complaint, claim,
demand, or notice alleging any such interference, infringement,
misappropriation, or violation, including any claim that any of the Company and
its subsidiary must license or refrain from using any Intellectual Property
rights of any third party. To the knowledge of any of the officers of the
Company and its subsidiaries, no third party has interfered with, infringed
upon, or misappropriated in any material respect any Intellectual Property
rights of any of the Company or its subsidiaries.
(c) The Disclosure Schedule identifies each patent or
registration which has been issued to any of the Company and its subsidiaries
with respect to any of its Intellectual Property, identifies each pending
patent application or application for registration which any of the Company and
its subsidiaries has made with respect to any of its Intellectual Property, and
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identifies each license, agreement, or other permission which any of the
Company and its subsidiaries has granted to any third party with respect to any
of its Intellectual Property (together with any exceptions). Section 2.17 of
the Disclosure Schedule also identifies each trade name or unregistered
trademark used by any of the Company and its subsidiaries. With respect to
each such item of Intellectual Property required to be identified in the
Disclosure Schedule:
i. the Company and its subsidiaries possess all
right, title, and interest in and to the item, free and clear of any security
interest, license, or other restriction;
ii. except as set forth on the Disclosure
Schedule the item is not subject to any outstanding injunction, judgment,
order, decree, ruling, or charge;
iii. except as set forth on the Disclosure
Schedule no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand is pending or, to the knowledge of any of the
officers of the Company and its subsidiaries, is threatened which challenges
the legality, validity, enforceability, use, or ownership of the item; and
(d) Section 2.17 of the Disclosure Statement identifies
each material item of Intellectual Property that any third party owns and that
any of the Company and its subsidiaries uses pursuant to license, sublicense,
agreement, or permission. The Company has delivered or made available at its
offices to the Investors correct and complete copies of all such licenses,
sublicenses, agreements, and permissions (as amended to date). With respect to
each such item of Intellectual Property required to be identified in the
Disclosure Schedule:
i. the license, sublicense, agreement, or
permission covering the item is legal, valid, binding, enforceable, and in full
force and effect;
ii. the license, sublicense, agreement or
permission will continue to be legal, valid, binding, enforceable, and in full
force and effect on identical terms following the consummation of the
transactions contemplated hereby;
iii. no party to the license, sublicense,
agreement, or permission is in breach or default, and no event has occurred
which with notice or lapse of time would constitute a breach or default or
permit termination, modification, or acceleration thereunder;
iv. no party to the license, sublicense,
agreement, or permission has repudiated any provision thereof;
v. except as set forth on the Disclosure
Schedule none of the Company and its subsidiaries has granted any sublicense or
similar right with respect to the license, sublicense, agreement, or
permission.
2.18 Environment, Health, and Safety. To the actual knowledge of
the Company's officers, each of the Company and its subsidiaries has complied
in all material respects with all laws (including rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings,
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and charges thereunder) of federal, state, local, and foreign governments (and
all agencies thereof) which have jurisdiction over the Company and its
subsidiaries concerning pollution or protection of the environment, public
health and safety, or employee health and safety, including laws relating to
emissions, discharges, releases, or threatened releases of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes
into ambient air, surface water, ground water, or lands or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, or chemical,
industrial, hazardous, or toxic materials or wastes, and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand, or notice
has been filed or commenced against any of them alleging any failure so to
comply. Without limiting the generality of the preceding sentence, each of the
Company and its subsidiaries has obtained and been in compliance with all of
the terms and conditions of all permits, licenses, and other authorizations
which are required under, and has complied, in all material respects, with all
other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules, and timetables which are contained in
such laws.
2.19 Product Liability. To the actual knowledge of the Company's
officers, none of the Company and its subsidiaries has any liability (and to
such officers' actual knowledge there is no factual basis for any action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or demand against
any of them giving rise to any liability) arising out of any injury to
individuals or property as a result of the ownership, possession, or use of any
product manufactured, sold, leased, or delivered by any of the Company and its
subsidiaries.
2.20 Conflicts of Interest. Except as disclosed in Section 2.20 of
the Disclosure Schedule, no officer, director or shareholder of the Company or
its subsidiaries or any affiliate of any such person has any direct or indirect
interest (a) in any entity which does business with the Company or its
subsidiaries, or (b) in any property, asset or right which is used by the
Company or any subsidiary in the conduct of business, or (c) in any contractual
relationship with the Company or any of its subsidiaries other than as an
employee.
2.21 Company Equipment. The Company's ice bagging equipment
manufactured by Lancer Corporation (the "Equipment") has received approval by
the National Sanitation Foundation. To the knowledge of the Company, the ice
making equipment manufactured by Hoshizaki America, Inc. has received approval
of the National Sanitation Foundation.
2.22 Disclosure. The Company has not knowingly withheld from the
Investor any material facts relating to the assets, business, operations,
financial condition or prospects of the Company or its subsidiaries. The
representations and warranties contained in this Agreement and all other
agreements being entered into in connection with this Agreement do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements and information contained herein not
misleading.
2.23 SEC Documents. The Company has provided to Investor its
Registration Statement on Form S-4 (the "Registration Statement"), which
Registration Statement the Company has filed with the U.S. Securities and
Exchange Commission (the "Commission") but which Registration
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Statement has not been declared effective by the Commission as of the Closing
Date. The Registration Statement does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The consolidated
financial statements of the Company included in the Registration Statement have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly present the consolidated financial
position of the Company and its consolidated subsidiaries as of the dates
thereof and the consolidated results of their operations and cash flows for the
periods then ended (except in the case of interim period financial information
for normal year-end adjustments). The Company has included in the Registration
Statement all material agreements, contracts and other documents which it
reasonably believes are required to be filed as exhibits to the Registration
Statement. To the Company's knowledge, the Company and its subsidiaries have
in all material respects substantially performed all obligations required to be
performed by them to date and are not in default in any material respect under
any of such agreements, contracts or other documents to which any of them is a
party or by which any of them is otherwise bound. To the Company's knowledge,
all instruments referred to above are in effect and enforceable according to
their respective terms, and there is not under any of such instruments any
existing material default or event of default or event which, with notice or
lapse of time or both, would constitute an event or default thereunder. To The
Company's knowledge, all parties having material contractual arrangements with
the Company or any of its subsidiaries are in substantial compliance therewith
and none are in material default in any respect thereunder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor represents and warrants to the Company, as follows:
3.1 Authorization. This Agreement has been duly executed and
delivered by the Investor and constitutes the valid and binding agreement of
the Investor enforceable in accordance with its terms, and each other agreement
required to be entered into by the Investor pursuant to the terms and
conditions hereof, when executed and delivered by the Investor will constitute
the valid and binding agreement of the Investor enforceable in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally. If the
Investor is not a natural person, it has all requisite power and authority to
enter into this Agreement and to perform its obligations hereunder.
3.2 Securities Not Registered. The Investor is acquiring the
Securities for investment purposes only, for his own account and not with a
view to, or for resale in connection with, any distribution thereof in
violation of applicable securities laws. The Investor has been advised that
the Securities being purchased and issued hereunder have not been registered
under the Securities Act or applicable state securities laws and that such
shares must be held indefinitely unless the offer and sale thereof are
subsequently registered under the Securities Act or an exemption from
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such registration is available. The Investor acknowledges and agrees that the
certificates evidencing the Securities will bear a restrictive legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAW AND THEY
MAY NOT BE OFFERED FOR SALE OR SOLD IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT THEREUNDER OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
and that such instruments will bear such restrictive or other legends as are
required by applicable state laws.
3.3 Access to Information. The Company has made available to the
Investor the opportunity to ask questions of and to receive answers from the
Company's officers, directors and other authorized representatives concerning
the Company and its business and prospects and Investor has been permitted to
have access to all information which he has requested in order to evaluate the
merits and risks of the purchase of the Securities hereunder.
3.4 Investor Due Diligence. In making the investment in the
Company and its Securities, the Investor is not acting on the basis of, or
relying upon, any promotional materials, business plans, financial projections,
representations or warranties other than those express representations and
warranties contained in this Agreement, and the Investor has performed its own
due diligence and has independently made such studies and investigations of the
Company's business, the market for the Company's products and services, the
Company and its management, as the Investor deems necessary to formulate its
decision to purchase Securities pursuant to the terms of this Agreement.
3.5 Investment Experience. The Investor (i) has such knowledge,
skill and experience in financial, business and investment matters relating to
an investment of this type, that it is capable of evaluating the merits and
risks of the purchase of the Securities, (ii) is an "accredited investor" as
that term is defined in Rule 501(a) of Regulation D promulgated under the
Securities Act, and (iii) has the ability to bear the risk of losing his entire
investment in the Securities.
3.6 Finders' Fees. The Investor has incurred no liability for
commissions or other fees to any finder or broker in connection with the
transactions contemplated by this Agreement.
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ARTICLE 4
COVENANTS OF THE COMPANY
The Company covenants and agrees that, unless a written waiver from
the Investors in accordance with the provisions of Section 9.2 of this
Agreement is first obtained, from and after the Closing Date the Company will
fully comply with each of the following covenants of this Article 4:
4.1 Books of Account. The Company will, and will cause each of
its subsidiaries to, keep books of record and account in which full, true and
correct entries are made of all of its and their respective dealings, business
and affairs, in accordance with generally accepted accounting principles. The
Company will employ certified public accountants selected by the Board of
Directors of the Company who are "independent" within the meaning of the
accounting regulations of the Securities and Exchange Commission and who are
one of the so-called "Big Six" accounting firms, and have annual audits made by
such independent public accountants in the course of which such accountants
shall make such examinations, in accordance with generally accepted auditing
standards, as will enable them to give such reports or opinions with respect to
the financial statements of the Company and its subsidiaries as will satisfy
the requirements of the Securities and Exchange Commission in effect at such
time with respect to certificates and opinions of accountants.
4.2 Furnishing of Financial Statements and Information. The
Company will deliver to the Investor:
(a) as soon as practicable, but in any event within 30
days after the close of each month, unaudited consolidated balance sheets of
the Company and its subsidiaries as of the end of such month, together with the
related consolidated statements of operations and cash flow for such month,
setting forth the budgeted figures for such month prepared and submitted in
connection with the Company's annual plan as required under Section 4.3 hereof,
all in reasonable detail in a form consistent with prior periods and certified
by an authorized accounting officer of the Company, subject to year-end
adjustments;
(b) as soon as practicable, but in any event within 165
days after the end of each fiscal year, a consolidated balance sheet of the
Company and its subsidiaries, as of the end of such fiscal year, together with
the related consolidated statements of operations, shareholders' equity and
cash flow for such fiscal year, setting forth in comparative form figures for
the previous fiscal year, all in reasonable detail and duly certified by the
Company's independent public accountants, which accountants shall have given
the Company an opinion, unqualified as to the scope of the audit, regarding
such statements;
(c) promptly after the submission thereof to the Company,
copies of all reports and recommendations submitted by independent public
accountants in connection with any annual
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or interim audit of the accounts of the Company or any of its subsidiaries made
by such accountants;
(d) promptly after transmission thereof, copies of all
reports, proxy statements, registration statements and notifications filed by
it with the Securities and Exchange Commission pursuant to any act administered
by the Securities and Exchange Commission or furnished to shareholders of the
Company or to any national securities exchange;
(e) with reasonable promptness, such other financial data
relating to the business, affairs and financial condition of the Company and
any subsidiaries as is available to the Company and as from time to time the
Investors may reasonably request;
(f) promptly following the issuance of any additional
shares of Common Stock or of any securities convertible into Common Stock, or
any options, warrants or other rights to purchase additional shares of Common
Stock or convertible securities, written notice of the amount of securities so
issued and the total consideration received therefor; and
(g) within 10 days after the Company learns in writing of
the commencement or threatened commencement of any material suit, legal or
equitable, or of any material administrative, arbitration or other proceeding
against the Company, any of its subsidiaries or their respective businesses,
assets or properties, written notice of the nature and extent of such suit or
proceeding.
4.3 Preparation and Approval of Budgets. At least one month prior
to the beginning of each fiscal year of the Company, the Company shall prepare
and submit to its Board of Directors, for its review and approval, an annual
plan for such year, which shall include monthly capital and operating expense
budgets, cash flow statements and profit and loss projections itemized in such
detail as the Board of Directors may reasonably request. Each annual plan
shall be modified as often as is necessary in the judgment of the Board of
Directors to reflect changes required as a result of operating results and the
other events that occur, or may be reasonably expected to occur, during the
year covered by the annual plan, and copies of each such modification shall be
submitted to the Board of Directors. The Company will, simultaneously with the
submission thereof to the Board of Directors, deliver a copy of each such
annual plan and modification thereof to each Investor.
4.4 Inspection. The Company will permit the Investors, or any
designee thereof, to visit and inspect the properties of the Company or any of
its subsidiaries, including the financial books and records thereof, and the
right to take extracts therefrom, and discuss the affairs, finances and
accounts thereof with the appropriate officers, all at reasonable times upon
reasonable notice, and as often as reasonably may be requested.
4.5 Directors' and Shareholders' Meetings. The Investor shall
have the right to elect one director of the Company as set forth in the Voting
Agreement (as defined in Section 5.10).
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The Company shall reimburse the Investor for the reasonable
out-of-pocket expenses incurred by it or the director elected by it in
connection with the attending of meetings by its director designee or carrying
out any other duties by such director designee that may be specified by the
Board of Directors; shall pay such director designee the same director's fees
paid to the other non-employee directors of the Company; shall maintain as part
of its Articles of Incorporation or Bylaws a provision for the indemnification
of its directors to the full extent permitted by law; and enter into indemnity
agreements reasonably satisfactory to Investor.
In addition, the Company shall notify the Investor's board designee of
all regular meetings and special meetings of the Board of Directors of the
Company at least two business days in advance of such meetings.
The Company agrees, as a general practice, to hold a meeting of its
Board of Directors at least once every three months, and during each year to
hold its annual meeting of shareholders within 30 days of delivery of the
audited financial statements.
4.6 Use of Proceeds. The Company will use the proceeds of the
investments made by the Investor to pay expenses incurred in connection with
this Agreement, repurchase Common Stock held by Xxxxxxx Companies, Inc.,
acquire other related businesses, make capital expenditures, and for general
working capital purposes related to the Company's business.
4.7 Other Restrictions. Without the prior approval of the Board
of Directors of the Company by an affirmative vote of at least two-thirds of
its members, neither the Company nor its subsidiaries will do any of the
following:
(a) declare or pay any dividend or make any other
distribution on any shares of its capital stock other than those payable solely
in shares of Common Stock, or purchase, redeem or otherwise acquire for any
consideration, or set aside a sinking fund or other fund for the redemption or
repurchase of any shares of capital stock or any warrants, rights or options to
purchase shares of capital stock (except that any subsidiary may pay dividends
to the Company);
(b) grant to the holders of any securities issued or to
be issued by the Company a "demand" right to register such securities under the
Securities Act;
(c) guarantee, endorse or otherwise be or become
contingently liable, or permit any subsidiary to guarantee, endorse or
otherwise become contingently liable, in connection with obligations in excess
of one million dollars ($1,000,000) in the aggregate, securities or dividends
of any person, firm, association or corporation (other than the Company and any
100% owned subsidiary), except that the Company and any subsidiary may endorse
negotiable instruments for collection in the ordinary course of business;
(d) make or permit any subsidiary to make loans or
advances to any person (including without limitation to any officer, director
or shareholder of the Company or any officer or director of any subsidiary),
firm, association or corporation (other than the Company and any
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100% owned subsidiary), except advances to suppliers, customers and employees
made in the ordinary course of business;
(e) make any material change in the nature of its
business as carried on at the date of this Agreement;
(f) organize any subsidiary, joint venture, partnership,
or acquire a business (by asset purchase, stock purchase, merger or otherwise),
or acquire any assets or make any investment (all of the foregoing being
hereinafter referred to as an "Investment"), except that:
(i) in the case of an Investment which is in the same
line of business as the Company (i.e., the distribution of packaged ice systems
and the sale of bags for use in such systems or the traditional methods of
manufacturing and distributing ice) or to be used in or in connection with the
Company's business as currently conducted, the Company and its subsidiaries may
make such Investment to the extent that the total expenditure for such
Investment does not exceed $500,000; and
(ii) in the case of any other Investment, the
Company and its subsidiaries may make such Investment only to the extent
permitted by the Company's Indenture for the 12% Senior Notes issued April 17,
1997, as such agreement is in effect on the date hereof;
(g) mortgage, pledge, or create a security interest in
all or substantially all of the Company's assets as collateral except that the
Company may pledge substantially all of its assets as security for its proposed
loan from Frost National Bank and Zions First National Bank; or
(h) become a party to a merger, consolidation or
reorganization with any other Person as a result of which at least 51% of the
voting power of the Company will not be held, directly or indirectly, by
persons or entities who held at least 51% of the voting power before such
merger, consolidation or reorganization, or sell or otherwise dispose of, or
enter into any agreement to sell or otherwise dispose of, all or substantially
all of the assets of the Company to any other Person. For purposes hereof,
"Person" shall mean any individual, corporation, partnership, venture or
proprietorship or other enterprise or entity.
ARTICLE 5
CONDITIONS TO INVESTOR'S OBLIGATIONS
The obligation of Investor to purchase and pay for the Securities to
be delivered to it hereunder at the Closing Date is subject to the fulfillment,
on or before the Closing Date, of each of the following conditions:
5.1 Compliance with Representations and Warranties. The
representations and warranties contained in Article 2 hereof shall be true on
and as of the Closing Date with the same
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effect as though made on and as of that date, and the Company shall have
performed and complied with all agreements and conditions contained herein
required to be performed or complied with by the Company prior to or at the
Closing.
5.2 Compliance Certificate. The Company shall have delivered to
the Investors a certificate, dated as of the Closing Date and signed by the
Company's President, certifying that the conditions in this Article 5 required
to be fulfilled prior to the Closing Date have been fulfilled.
5.3 Reserved.
5.4 Parallel Exit Agreement. Xxxxx X. Xxxxxx, X.X. Xxxxx III,
Xxxxxx X. Xxxxxxxxx, and the Company shall have entered into the Parallel Exit
Agreement in the form of Exhibit 5.4 attached hereto ("Parallel Exit
Agreement").
5.5 Stock Certificates. The Company shall have delivered to the
Investor a stock certificate evidencing the 300,000 shares of Common Stock
purchased hereunder.
5.6 Registration Rights Agreement. The Company shall have
executed and delivered a Registration Rights Agreement in the form set forth as
Exhibit 5.6 hereof.
5.7 Warrant. The Company shall have executed and delivered the
Warrant.
5.8 Opinion of Counsel. The Company shall have delivered to the
Investor the opinion of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P. dated the
Closing Date, substantially in the form of Exhibit 5.8.
5.9 New Voting Agreement. The holders of at least 60% of the
outstanding shares of Common Stock and Series A Convertible Preferred Stock and
Series B Convertible Preferred Stock calculated as a single class (excluding
shares of Common Stock to be issued to Investor pursuant to this Agreement)
shall have executed and delivered the Voting Agreement in the form attached
hereto as Exhibit 5.10 (the "New Voting Agreement"), and the Company warrants
and covenants that the holders of at least 60% of such shares have executed the
New Voting Agreement. In connection therewith, the Company acknowledges that
in the event the representative designated by Investor to be elected to the
Board of Directors pursuant to the terms of the New Voting Agreement is (i) not
elected to the Board of Directors, or (ii) removed from the Board of Directors,
despite the vote of the Shareholders (as defined in the New Voting Agreement)
for such designee's election and against such designee's removal, the Company
shall, until such time as Investor's designee is reelected to the Board of
Directors, provide Investor with notice at least 10 business days in advance of
any meeting of the Board of Directors of the Company, and the Investor shall
have the right to have one representative designated by Investor attend all
meetings of the Company's Board of Directors whether such meetings are
conducted in person or telephonically, but shall not have the right to vote or
participate in any action taken at such meetings.
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ARTICLE 6
CONDITIONS TO COMPANY'S OBLIGATIONS
The obligation of the Company to issue and sell the Securities to the
Investor hereunder is subject to the fulfillment by Investor, at or before the
Closing, of the following conditions:
6.1 Compliance with Representations and Warranties. The
representations and warranties of the Investor contained in Article 3 hereof
shall be true on and as of the Closing Date with the same effect as though made
on that date (except to the extent that any representations and warranties of
the Company specifically apply to conditions existing at a particular date).
6.2 Other Agreements. The Investor shall have entered into the
Amended and Restated Shareholders Agreement among the Company and Shareholders
dated September 20, 1995, as amended, the Amended and Restated Voting Agreement
among the Company and Shareholders dated September 20, 1995, as amended, the
Parallel Exit Agreement, the Registration Rights Agreement, the Warrant
Agreement and the New Voting Agreement.
ARTICLE 7
INDEMNIFICATION
The Company shall indemnify and hold harmless the Investor, and the
Investor shall indemnify and hold harmless the Company, against all claims,
liability, damage, loss, cost and expense (including reasonable attorneys' and
accountants' fees) incurred by the indemnified party or parties as a result of
or in connection with the breach by the indemnifying party or parties of any
representation, warranty or covenant contained in this Agreement or in any
other agreement entered into pursuant to the terms and conditions of this
Agreement and any and all actions, suits, proceedings, claims, demands and
judgments incident to or alleged to be incident to any of the foregoing.
ARTICLE 8
RIGHT TO PURCHASE ADDITIONAL SECURITIES
8.1 First Refusal Rights. Subject to the terms and conditions of
this Article 8, the Company hereby grants to Investor (referred to hereinafter
in this Article 8 as the "Offeree") a right of first refusal to purchase all or
any part of any issue of New Securities (as defined hereinbelow) that the
Company (or any subsidiary whose capital stock will not be wholly owned,
directly or indirectly, by the Company upon completion of any such issuance)
may from time to time after the Closing Date propose to issue.
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8.2 New Securities. "New Securities" shall mean any capital
stock, any rights, options or warrants to purchase or subscribe for capital
stock, and any securities or other instruments of any type whatsoever that are,
or may become, convertible into or exchangeable for capital stock, which are
issued for cash; provided, however, that "New Securities" shall not include (i)
securities offered and sold by the Company pursuant to a Public Offering (as
hereinafter defined); (ii) shares of the Company's Common Stock (or related
options or rights) issued to the Company's employees and directors pursuant to
a plan adopted by the Board of Directors; (iii) Common Stock issued by the
Company upon the conversion of the Series A Preferred Stock or Series B
Preferred Stock of the Company; and (iv) shares of the Company's capital stock
issued in connection with any existing warrant, option or right listed on the
Disclosure Schedule, stock split or stock dividend by the Company.
8.3 Notice and Allocation Periods. If the Company or, when
applicable, its subsidiary, proposes to undertake a bonafide issuance of New
Securities, then it shall give the Offeree written notice of its intention,
describing the type of New Securities, the price, the number of shares to be
offered, and the general terms upon which such securities are proposed to be
offered. Offeree shall be given at least 20 days' prior written notice within
which to agree to purchase all or any part of its Pro Rata Share (as
hereinafter defined) of such issuance of New Securities for the price and upon
the general terms specified in said notice by giving written notice to the
issuer within such period and stating therein the quantity of New Securities to
be purchased by it. "Pro Rata Share" shall mean, with respect to Offeree, that
portion of the number of shares of New Securities proposed to be issued which
equals the proportion that (a) the number of shares of Common Stock held by the
Offeree immediately prior to the proposed issuance, plus the number of shares
of Common Stock which would then be issuable to the Offeree assuming that all
securities of the Company convertible into or exchangeable for Common Stock had
been converted or exchanged, bears to (b) the total number of shares of Common
Stock issued and outstanding immediately prior to the proposed issuance,
assuming that all securities of the Company convertible into or exchangeable
for Common Stock had been converted or exchanged.
8.4 Right of Company to Sell New Securities. If the Offeree fails
to exercise in full its right of first refusal within the applicable period set
forth above, then the Company or, when applicable, its subsidiary shall have
120 days thereafter to sell the New Securities respecting which the rights set
forth herein were not exercised at a price and upon general terms no more
favorable to the purchaser thereof than specified in the notice to the Offeree.
If such New Securities have not been sold within such 120-day period, then the
Company or, when applicable, its subsidiary shall not thereafter issue or sell
any New Securities without first offering them to the Offeree in the manner
provided above.
8.5 Public Offering. Reference to the term "Public Offering" in
this Agreement shall mean a bonafide firm commitment underwritten public
offering of shares of the Company's Common Stock made through a nationally
recognized underwriting firm pursuant to an effective registration statement
under the Securities Act, which results in gross proceeds to the Company of not
less than $7.5 million.
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8.6 Termination. This Article 8 shall continue in effect from the
date of this Agreement until the Company has completed a Public Offering.
ARTICLE 9
MISCELLANEOUS
9.1 Notices. All notices, requests, demands and other
communications hereunder, and each other agreement required to be entered into
pursuant to the terms and conditions of this Agreement, shall be in writing and
shall be delivered by hand, overnight courier, facsimile transmission, or by
United States Mail, and shall be deemed to have been duly given when actually
received, or when mailed, first class postage prepaid, certified mail, return
receipt requested, to the addresses set forth below, or to such other address
as may be designated hereafter by prior written notice from the recipient to
the sender:
If to the Company: Packaged Ice, Inc.
Attention: Chief Executive Officer
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
With a copy to: Akin, Gump, Strauss,
Xxxxx & Xxxx, L.L.P.
Attention: Xxxx Xxxxxxxxxx
000 Xxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
If to the Investor: SV Capital Partners, L.P.
Attention: Xxxx Xxxxxx
SV Capital Partners, L.P.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
with a copy to: Fulbright & Xxxxxxxx, L.L.P.
Attention: Xxxxxx Xxxxxx, Esq.
000 Xxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
9.2 Modification and Waiver.
(a) No amendment or modification to this Agreement shall
be made without the written approval of the Company and the Investor.
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(b) Approval, waiver and consent by the Investor
hereunder shall be in writing and shall be delivered to the Company in the
manner provided for in Section 9.1 herein.
9.3 Termination. This Agreement shall continue in effect from the
date of execution until the Company has completed an initial Public Offering.
9.4 Conflicts. If there shall be any conflict between any
provision of this Agreement and any provision of the other agreements required
to be entered into pursuant to the terms and conditions of this Agreement, the
conflicting provision of such other agreements shall control.
9.5 Gender. Wherever herein, and in each other agreement required
to be entered into pursuant to the terms and conditions of this Agreement, the
singular number is used, the same shall include the plural, and the masculine
gender shall include the feminine and neuter genders, and vice versa, as the
context may require.
9.6 Headings. The headings contained in this Agreement, and in
each other agreement required to be entered into pursuant to the terms and
conditions of this Agreement, are for reference purposes only and shall not in
any way affect their meaning or interpretation.
9.7 Counterparts. This Agreement, and each other agreement
required to be entered into pursuant to the terms and conditions of this
Agreement, may be executed in any number of counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
9.8 Parties in Interest. This Agreement, and each other agreement
required to be entered into pursuant to the terms and conditions of this
Agreement, shall, except as may otherwise be specifically provided to the
contrary therein, inure to the benefit of and be binding upon each of the
parties hereto and thereto, as the case may be, and their respective heirs,
executors, legal representatives, successors and assigns.
9.9 Survival. All covenants, agreements, representations and
warranties made herein, and in each other agreement required to be entered into
pursuant to the terms and conditions of this Agreement, or otherwise in writing
in connection therewith, shall survive the execution and delivery thereof and
the consummation of the transactions contemplated thereby.
9.10 Entire Agreement. This Agreement, and each other agreement
required to be entered into pursuant to the terms and conditions of this
Agreement, embody the entire agreement and understanding between the parties
thereto, and supersede all prior agreements and understandings, written and
oral, relating to the subject matter thereof, including, without limitation,
all letters of intent and summary term sheets heretofore executed or examined
by the parties.
9.11 Governing Law. THIS AGREEMENT, AND EACH OTHER AGREEMENT
REQUIRED TO BE ENTERED INTO PURSUANT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, SHALL, EXCEPT AS MAY OTHERWISE BE SPECIFICALLY
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PROVIDED TO THE CONTRARY THEREIN, BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS.
9.12 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, including, without
limitation any claim for violation of securities laws, shall be settled by
binding arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, in Houston, Texas, and judgment upon the
award rendered by the arbitrator may be entered in any court having
jurisdiction thereof, and shall not be appealable.
9.13 Expenses and Attorneys' Fees. The Company shall pay all
reasonable costs and expenses that are incurred with respect to the
negotiation, execution, closing, delivery and performance of this Agreement,
and each other agreement required to be entered into pursuant to the terms and
conditions of this Agreement including without limitation those reasonable
legal, accounting and travel costs and expenses incurred by the Investor. The
Company's obligation to pay the Investor's expenses shall not be incurred by
the Company until the Closing.
9.14 Language. The language used in this Agreement, and the other
agreements required to be entered into pursuant to the terms and conditions of
this Agreement, shall be deemed to be language chosen by the parties thereto to
express their mutual intent, and no rule of strict construction against any
party shall apply to any term or condition thereof.
9.15 Severability. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions hereof and this
Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
9.16 Waiver. No waiver by any party of the performance of any
provision, condition or requirement herein shall be deemed to be a waiver of,
or in any manner release the other party from, performance of any other
provision, condition or requirement herein; nor deemed to be a waiver of, or in
any manner release the other party from future performance of the same
provision, condition or requirement; nor shall any delay or omission by any
party to exercise any right hereunder in any manner impair the exercise of any
such right accruing to it thereafter.
9.17 No Third-Party Beneficiaries. Nothing contained in this
Agreement shall be construed to give any person other than the Company and
Investor, their successors and assigns, any legal or equitable right, remedy or
claim under or with respect to this Agreement.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
THE COMPANY: PACKAGED ICE, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
--------------------------------
THE INVESTOR: SV CAPITAL PARTNERS, L.P.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Attachments:
Disclosure Schedule
Exhibit A Warrant
Exhibit 5.4 Parallel Exit Agreement
Exhibit 5.6 Registration Rights Agreement
Exhibit 5.8 Opinion of Counsel
Exhibit 5.10 New Voting Agreement
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