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Exhibit 4.13
PARALLEL EXIT AGREEMENT
THIS PARALLEL EXIT AGREEMENT (this "Agreement") is made and entered into
effective April 30, 1998, by and among PACKAGED ICE, INC., a Texas corporation
(the "Company"), XXXXX X. XXXXXX ("Xxxxxx"), X.X. XXXXX III ("Xxxxx") and ARES
LEVERAGED INVESTMENT FUND, L.P. and S.V. CAPITAL PARTNERS, L.P. (each an
"Investor" and collectively the "Investors").
WHEREAS, the parties hereto are desirous of setting forth certain
matters with respect to the transfer of their common stock in the Company (the
"Common Stock").
NOW, THEREFORE, for and in consideration of the premises, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following defined
terms shall have the meanings as set forth hereinbelow:
"Adjusted Pro Rata Share" shall mean a fraction, the numerator of which
is the number of Fully-Diluted Shares held by a shareholder participating in a
Subject Sale, and the denominator of which is the total number of Fully-Diluted
Shares held by all shareholders participating in a Subject Sale, excluding the
number of Fully-Diluted Shares held by each of the participating shareholders
who elect not to sell their entire Pro Rata Share in a Subject Sale.
"Common Stock" shall mean the Company's $.01 par value common stock.
"Fully-Diluted Shares" shall mean the Company's outstanding Common
Stock, after giving effect to all outstanding warrants, options, rights, stock-
splits, adjustments, convertible securities, and the like.
"Insider Shareholders" shall mean Stuart and Xxxxx.
"Pro Rata Share" shall mean a fraction, the numerator of which is the
number of Fully-Diluted Shares held by a shareholder participating in a Subject
Sale, and the denominator of which is the total number of Fully-Diluted Shares
held by all shareholders participating in a Subject Sale.
"Subject Sale" shall mean any sale or disposition for value of Common
Stock of the Company beneficially-owned by an Insider Shareholder (other than a
sale to the general public for cash that is registered under the Securities Act
of 1933, or an unsolicited open market sale for cash effected through a
securities broker at such time as there shall exist a bona fide public market
for the Common Stock), if, immediately after giving effect to such Subject Sale
and to all other sales and dispositions of Common Stock made by said Insider
Shareholder (whether or not such sales or dispositions are
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subject to this Agreement) since and including the first day of the calendar
year in which such Subject Sale is to be made, said Insider Shareholder's
beneficial ownership of the Company's outstanding Common Stock on a fully-
diluted basis would be decreased to an amount which is less than 95% of the
amount of such ownership as of the opening of business on the first day of the
calendar year in which such Subject Sale is to be made.
2. PARALLEL EXIT.
No Insider Shareholders will participate as a seller in any Subject
Sale, including, but not limited to, a sale to the Company, without causing the
purchaser in such Subject Sale to offer each Investor the opportunity to
participate in such Subject Sale on the same terms and conditions and on a pro
rata basis as Insider Shareholders with respect to shares of Common Stock (and
rights or other securities exercisable for, or convertible or exchangeable
into, Common Stock) held by each such Investor, except that Investors shall not
be required to make any representations as to any matters concerning the
business operations of the Company. Investors shall only be required to
represent and warrant, on a several, but not joint basis, the status of title
to their respective interest in shares of their Common Stock, due authorization
to enter into any such Subject Sale and that no conflicts of interests or other
conflicting conditions exist that would prohibit Investors from making such
representations. Furthermore, neither Investor shall be required to enter into
any contract or arrangement providing for the indemnity of any other Investor
or any Insider Shareholder. Each Investor shall only be required to provide
indemnity for any breach of any representation that any Investor does make in
any such Subject Sale.
Each Investor who elects to participate in such Subject Sale shall be
entitled to sell his Pro Rata Share of the number of shares the purchaser is
willing to purchase. Provided, however, in the event a participating
shareholder chooses not to sell his entire Pro Rata Share, the other
participating shareholders shall have the right to sell their Adjusted Pro Rata
Share of the shares of Common Stock which the participating shareholder does
not choose to sell. Each Insider Shareholder shall give each Investor at least
ten (10) days prior written notice of any Subject Sale. Each Investor should
provide the Company with the number of Fully-Diluted Shares which each Investor
desires to sell as part of the Subject Sale at least two days prior to the
Subject Sale. Each Insider Shareholder participating in such sale must then
sell all shares offered by each Investor as part of the Subject Sale as a
condition to complete such Subject Sale.
3. TERMINATION. This Agreement shall continue in effect from the
date of execution until the Company has completed an initial public offering of
its Common Stock, on a firm commitment basis with a nationally recognized
underwriter, resulting in aggregate offering proceeds of $7,500,000 or more,
before deduction of underwriting discounts and expenses of sale.
4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
benefit the parties hereto and their respective successors and assigns
(including each
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transferee of any party's Common Stock); provided, however, no transferee of
Common Stock in a public offering registered under the Securities Act of 1933
or in an unsolicited open market sale effected through a securities broker
shall be bound by or entitled to the benefits of this Agreement. As used in
this Agreement, the terms "Insider Shareholders" and "Investor" shall include
any transferee of such a person, as appropriate, who is bound by and entitled
to the benefits of this Agreement under the preceding sentence.
5. LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF TEXAS.
6. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall together constitute a single agreement, but
shall be effective only at such time as all parties have executed a counterpart
(but not necessarily the same counterpart) of this Agreement.
7. AMENDMENTS. This Agreement may be amended, and any provision
hereof may be waived, only by a written agreement executed by the Insider
Shareholders and the InvestorS.
8. LEGENDS. The Company will cause each certificate that evidences
any securities or stock that are subject to this Agreement to bear a legend
substantially like the following legend, which shall be typed, printed, or
stamped thereon in a conspicuous manner:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A PARALLEL EXIT
AGREEMENT DATED APRIL 30, 1998, AMONG THE COMPANY AND CERTAIN OF ITS
SHAREHOLDERS. THE COMPANY WILL FURNISH TO THE RECORD HOLDER OF THIS
CERTIFICATE (WITHOUT CHARGE) A COPY OF SUCH AGREEMENT UPON WRITTEN REQUEST
THEREFOR TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED
OFFICE."
The Company agrees that a counterpart of this Agreement shall be kept at
the principal office of the Company and shall be subject to the same right of
examination by any shareholder of the Company, in person or by agent, attorney,
or other designated representative, as are the books and records of the
Company.
9. NOTICES. Any notice or other communication provided for herein
or given hereunder to a party hereto shall be in writing and shall be deemed to
have been duly given if signed by the party giving it. Notice shall be deemed
effective upon delivery by hand, or on the third (3rd) business day after it is
deposited in the United States mail, postage prepaid (registered or certified
mail), or on the business day after it is sent by Federal Express or similar
overnight service to the addresses of the parties as set forth herein, or to
such other addresses as a party shall provide to the other parties in
accordance with this Section.
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10. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
between the parties hereto relating to the subject matter herein, and shall
supersede all previous agreements between the parties hereto relating to the
subject matter herein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PACKAGED ICE, INC.
By:
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Print Name:
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Print Title:
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INSIDE SHAREHOLDERS
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XXXXX X. XXXXXX
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X.X. XXXXX III
INVESTORS:
SV CAPITAL PARTNERS, L.P.
By: SV Capital Management, Inc.
By:
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Print Name:
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Print Title:
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ARES LEVERAGED INVESTMENT FUND, L.P.
By:
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Print Name:
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Print Title:
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