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EXHIBIT 10.10
TRANSFER RESTRICTION AGREEMENT
This TRANSFER RESTRICTION AGREEMENT (this "Agreement") is entered into
as of December 2, 1997, by and between Packaged Ice, Inc., a Texas corporation
(the "Company"), and Culligan Water Technologies, Inc., a Delaware Corporation
(the "Investor").
W I T N E S S E T H :
WHEREAS, the Investor is the holder of 235,000 shares of the Company's
10% Exchangeable Preferred Stock (the "10% Preferred Stock") and 94 shares of
the Company's Series C Preferred Stock (the "Series C Preferred Stock") and
Warrants to acquire 1,807,692 shares of common stock (the "Warrants"); and
WHEREAS, for the purposes of this Agreement, the 10% Preferred Stock,
the Series C Preferred Stock and the Warrants and any Additional Shares of 10%
Preferred Stock (as defined in the 10% Preferred Stock Certificate of
Resolution) and any additional warrants (as calculated in Section 4.7 of the
Securities Purchase Agreement) of the Company, acquired by the Investor on or
after the date hereof shall hereinafter collectively be referred to as the
"Securities."
NOW, THEREFORE, for and in consideration of the premises set forth
above, the mutual promises, covenants and agreements contained in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Investor
agree as follows:
1. RESTRICTION ON TRANSFER OF STOCK
1.1. Without the prior written consent of the Company as authorized
by a disinterested majority of the Board of Directors of the Company, Investor
shall not sell, make a gift of, assign, transfer or otherwise dispose of
(collectively, a "Transfer") any of the Securities or any right, title or
interest therein, to Suiza Foods, Inc., Reddy Ice, and their respective
subsidiaries, affiliates, and successors resulting from a Business Combination.
For the purposes of this Agreement, "Business Combination" shall mean a merger,
consolidation or sale of substantially all of the assets of a corporation or
other entity. Any purported Transfer in violation of any provision of this
Agreement shall not operate to transfer any interest to the intended
transferee, and shall not be given any effect by the Company.
1.2. All Securities now owned or hereafter acquired by the Investor
shall be issued, held and transferred in accordance with, and shall at all
times be subject to, the terms and conditions of this Agreement. Any Transfer
of such Securities (in accordance with this Agreement) shall be contingent upon
the transferee executing and delivering to the Company and the other party a
written agreement containing substantially the same terms set forth herein.
1.3. Each certificate representing Securities now owned or
hereafter acquired by the Investor shall be endorsed substantially as follows:
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"The Securities represented by this Certificate and the
Transfer thereof are subject to and restricted by a Transfer
Restriction Agreement entered into by the Company and the holder
hereof, a copy of which may be obtained without charge by the holder
hereof upon written request to the Company at its principal office."
2. TERMINATION
This Agreement shall terminate upon the occurrence of any one of the
following events:
(a) the Company permanently ceases to do business;
(b) the Company and Reddy Ice consummate a Business Combination;
(c) the shareholders of the Company, as of the date
hereof, own less than 50% of the stock outstanding of
the Company after a Business Combination;
(d) there is consummated an underwritten public offering
of the Company's common stock, which results in net
proceeds to the Company and the shareholders of at
least $40,000,000; or
(e) the written agreement of the Investor and the Company.
3. GENERAL
3.1. Delivery of Notices. Any notice, offer, demand, payment,
request, response or other communication required or permitted hereunder shall
be given in writing, by personal delivery, fax, express mail, or by United
States certified mail (postage prepaid, return receipt requested) to the
Company and the Investor at the respective addresses set forth below:
If to the Company: Packaged Ice, Inc.
Attn: President
0000 Xxxx Xxxxxxx, Xxx. 000
Xxxxxxx, Xxxxx 00000
If to the Investor: Culligan Water Technologies, Inc.
Attn.: General Counsel
Xxx Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000-0000
or to such other address as the party to receive such communication has last
designated by written notice delivered to the other party in accordance with
the foregoing provisions. All communications (including offers) hereunder
shall be deemed "dated" (i) when sent or dispatched, if given in accordance
with this Section 3.1 or (ii) when received, if given in any
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other manner. Any time period referenced in this Agreement shall be deemed to
include the last day of such period.
3.2. Further Assurances. Each party hereto agrees to perform any
further acts, and to execute and deliver any further documents or instrument,
which may be reasonably necessary to carry out the provisions of this
Agreement.
3.3. Severability. In the event any of the provisions of this
Agreement are held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions shall
not be affected thereby.
3.4. Binding Effect and Assignment. Subject to the restrictions
against transfer as set forth herein, this Agreement shall be binding upon and
inure to the benefit of the parties hereto, their respective legal
representatives, successors and assigns.
3.5. Captions and Section Headings. Captions and section headings
used herein are for convenience only and shall not be used in construing this
Agreement. All section cross-references are to sections within this Agreement.
3.6. Governing Law. This Agreement has been executed in and shall
be governed by the laws of the State of Illinois.
3.7. Waiver. No waiver or indulgence by either party of any
failure by the other party to keep or perform any terms or provision of this
Agreement shall be a waiver of any preceding or succeeding breach of the same
or of any other term or provision of this Agreement.
3.8. Confidentiality. Except as otherwise set forth herein or as
otherwise required by law, including the federal securities law, the Company
and the Investor agree to maintain in confidence the terms of this Agreement.
3.9. Gender. Whenever herein, the masculine gender shall include
the feminine and neuter genders, and vice versa, as the context may require.
3.10. Counterparts. 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.
IN WITNESS WHEREOF, the Company and the Investor have executed this
Transfer Restriction Agreement on the date first above written.
SIGNATURE PAGE FOLLOWS
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TRANSFER RESTRICTION AGREEMENT SIGNATURE PAGE
"COMPANY" PACKAGED ICE, INC.
By:
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X.X. Xxxxx III, President
"INVESTOR" CULLIGAN WATER TECHNOLOGIES, INC.
By:
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Name:
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Title:
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