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EXHIBIT 10.19
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT
AND
CONSENT AND WAIVER
(NORWEST AND FOOD FUND)
This Amendment No. 2 to Stock Purchase Agreement and Consent and Waiver
of Right ("Amendment, Consent and Waiver") is dated as of March 14, 1997 by and
among Packaged Ice, Inc., a Texas corporation (the "Company"), and the persons
named on Exhibit A attached hereto and incorporated herein by reference (the
"Consenting Shareholders").
W I T N E S S E T H
WHEREAS, the Consenting Shareholders purchased shares of the Company's
common stock, $.01 par value (the "Common Stock") and Series A Convertible
Preferred Stock, $.01 par value (the "Series A Preferred Stock"), pursuant to a
Stock Purchase Agreement dated as of September 20, 1995 (the "Stock Purchase
Agreement"), which Stock Purchase Agreement is incorporated herein by
reference; and
WHEREAS, defined terms used herein shall have the meanings given to such
terms in the Stock Purchase Agreement unless otherwise defined herein; and
WHEREAS, Article 4 of the Stock Purchase Agreement contains certain
continuing covenants of the Company; and
WHEREAS, the Company is desirous of obtaining a waiver and estoppel from
the Consenting Shareholders that all of the covenants have been met to their
satisfaction; and
WHEREAS, Article 8 of the Stock Purchase Agreement grants the Consenting
Shareholders the right of first refusal to purchase additional securities; and
WHEREAS, the Preferred Stock Series Designation providing for the
issuance of the Series A Preferred Stock (the "Certificate of Designation")
contains anti-dilution rights relative to issuances of capital stock at a price
of less than $5.56 per share; and
WHEREAS, the Company is desirous of issuing, on or before May 31, 1997,
up to 1,000,000 shares of Common Stock in connection with the acquisitions of
Mission Party Ice, Inc., South Texas Packaged Ice, Inc., and Southwestern Ice,
Inc. at an agreed price of $10.00 per share, to X.X. Xxxxx, III, Xxxx X. Xxxxx,
Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxxx and Xxxx Xxxxxxxxx, et al (such issuances of
Common Stock shall hereinafter collectively be referred to as the "Acquisitions
Issuance"); and
WHEREAS, the Company is desirous of issuing a minimum of $50 million in
investment units (the "Units") to institutional investors pursuant to a private
offering managed by Xxxxxxxxx & Company, Inc., with Units to consist of senior
notes due 2004 ("Notes") and warrants (the "Unit
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Warrants") granting the institutional investors the right to purchase shares of
Common Stock at an exercise price of $.01 per share (such issuance of Unit
Warrants shall hereinafter be referred to as the "Units Issuance "); and
WHEREAS, the Consenting Shareholders are desirous of consenting to the
Acquisitions Issuances and the Units Issuance, waiving their rights to purchase
their Pro Rata Share of each of the Acquisitions Issuance and the Units
Issuance, and amending the definition of "New Securities";
WHEREAS, the Consenting Shareholders are desirous of waiving their
rights to an adjustment of the conversion price of the Series A Preferred Stock
as a result of the issuance of the Unit Warrants; and
WHEREAS, the Consenting Shareholders are desirous of providing their
consent to the granting of demand registration rights in connection with the
Acquisitions Issuance and the Units Issuance and the Notes.
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereto and of the mutual benefits to be gained by the performance thereof, the
parties hereto hereby agree as follows:
1. Each of the undersigned Consenting Shareholders hereby (i)
confirms that all of the covenants set forth in Article 4 of the Stock Purchase
Agreement have been met to their satisfaction, and (ii) hereby waives any and
all noncompliances by the Company with respect to said covenants.
2. Each of the undersigned Consenting Shareholders hereby consents
to the issuance of the Notes, the Acquisitions Issuance and the Units Issuance,
and hereby waives his or her right to purchase his or her Pro Rata Share of
each of the Acquisitions Issuance and the Units Issuance and any and all Common
Stock issued as a result of the exercise of the Unit Warrants.
3. Other than with respect to the Acquisitions Issuance and the
Units Issuance, the parties agree that this Amendment, Consent and Waiver shall
not be construed to be a consent and/or waiver of Article 8 of the Stock
Purchase Agreement for any sale and purchase of any other New Securities.
4. The Stock Purchase Agreement is hereby amended by amending and
restating Section 8.2 thereof as follows:
8.2 Definition of 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)
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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; (iv) shares of the Company's capital
stock issued in connection with any existing option or right listed on
the Disclosure Schedule, stock split or stock dividend by the Company;
and (v) Common Stock issued by the Company upon the exercise of the Unit
Warrants (as defined in Amendment No. 2 to Stock Purchase Agreement and
Consent and Waiver of Right to Purchase Additional Securities).
5. Each of the Consenting Shareholders agrees that the issuance of
the Unit Warrants and the issuance of Common Stock upon the exercise thereof
shall not constitute an issuance of "Additional Shares of Common Stock" for
the purposes of Sections 4(e) and (f) of the Certificate of Designation, and
that the Conversion Price (as therein defined) shall not be adjusted as a
result of the issuance of the Unit Warrants or the exercise thereof.
6. Each of the Consenting Shareholders consents to the execution and
delivery by the Company of registration rights agreements with respect to the
Notes, and with respect to Common Stock issued pursuant to the Acquisitions
Issuance and/or the Units Issuance, with such registration rights agreements to
be in such forms as the Company's Board of Directors determines to be
reasonable and appropriate. This consent is made pursuant to Section 15 of
that certain Registration Rights Agreement dated September 20, 1995 as amended
as of January 17, 1997 by and among the Company and the Consenting
Shareholders.
7. Except as expressly amended hereby, the Stock Purchase Agreement
is hereby ratified and confirmed in every respect and shall remain in full
force and effect in accordance with its terms.
8. The amendment set forth herein shall be effective when executed
by the Company and all of the Consenting Shareholders.
9. This Amendment, Consent and Waiver shall be construed and
enforced in accordance with the laws of the State of Texas.
10. This Amendment, Consent and Waiver may be executed in one or more
counterparts, all of which shall together constitute a single agreement. A
facsimile of an executed counterpart signature page shall be deemed to be an
original executed counterpart signature page.
Executed effective March 14, 1997:
PACKAGED ICE, INC.
By:
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Xxxxx X. Xxxxxx, Chief Executive Officer
SIGNATURE PAGE FOLLOWS
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AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT
AND
CONSENT AND WAIVER
(NORWEST AND FOOD FUND)
CONSENTING SHAREHOLDERS COUNTERPART SIGNATURE PAGE
Executed effective March 14, 1997:
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Name of Investor if Entity/Signature if Individual
By:
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Title:
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Please type or print name
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EXHIBIT A
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CONSENTING SHAREHOLDERS' NAMES AND SHARES OF COMMON STOCK
ADDRESSES AND SERIES A PREFERRED
STOCK ISSUED UNDER STOCK
PURCHASE AGREEMENT
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Norwest Equity Partners V, 378,000 Shares Common Stock
a Minnesota Limited Partnership 405,000 Shares Series A Preferred
2800 Xxxxx Xxxxxxx Tower Stock
000 Xxxxx Xxxxx Xx.
Xxxxxxxxxxx, XX 00000-0000
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Food Fund II Limited Partnership 42,000 Shares Common Stock
0000 Xxxxxxx Xxxxx, Xxxxx 000 45,000 Shares Series A Preferred
Xxxxxxxxxx, XX 00000 Stock
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