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EXHIBIT 10.22
AMENDMENT NO. 1
TO
REGISTRATION RIGHTS AGREEMENT
This Amendment No 1. dated as of January 17, 1997 (this
"Amendment") to that certain Registration Rights Agreement made as of the 20th
day of September, 1995 (the "Registration Rights Agreement") by and among
Packaged Ice, Inc., a Texas corporation (the "Company"), Norwest Equity
Partners V, a Minnesota Limited Partnership ("NEP"), and The Food Fund II
Limited Partnership (the "Food Fund"). All capitalized terms used herein and
not defined herein shall have the meanings set forth in the Registration Rights
Agreement.
WHEREAS, Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx"), NEP and the Food Fund
(collectively, the "Purchasers") are desirous of purchasing shares of Series B
Convertible Preferred Stock of the Company ("Series B Preferred Stock")
pursuant to a Stock Purchase Agreement among the Purchasers and the Company
(the "Stock Purchase Agreement"); and
WHEREAS, as partial inducement for the Purchasers to enter into
the Stock Purchase Agreement and to purchase the Series B Preferred Stock
pursuant thereto, the Company in the Stock Purchase Agreement has agreed that
the obligation of the Purchasers to purchase the Series B Preferred Stock shall
be conditioned upon the execution and delivery of an amendment to the
Registration Rights Agreement such that the shares of Common Stock of the
Company issued or issuable upon conversion of the Series B Preferred Stock are
considered Registrable Securities under the Registration Rights Agreement and
certain other modifications are made to the Registration Rights Agreement; and
WHEREAS, the parties hereto wish to enter into this Amendment to
implement the aforesaid condition of the Stock Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
obligations of the parties hereto, the parties do hereby agree as follows:
1. Amendments. The Registration Rights Agreement is amended
as set forth below.
(a) Section l(h) of the Registration Rights Agreement is
hereby amended by amending and restating the first sentence thereof in its
entirety as follows:
"(h) 'Registrable Securities' shall mean all of the following
to the extent the same have not been sold to the public (i) any and all
shares of Common Stock of the Company issued to or held by Norwest
Equity Partners V, a Minnesota Limited Partnership ("NEP"), and The Food
Fund II Limited Partnership (the "Food Fund"), including without
limitation the Common Stock of the Company sold to NEP and the
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Food Fund on the date hereof and the Common Stock of the Company issued
or issuable upon conversion of shares of the Company's Series A
Convertible Preferred Stock or the Company's Series B Convertible
Preferred Stock; (ii) any and all shares of Common Stock of the Company
issued or issuable upon conversion of the Company's Series B Convertible
Preferred Stock issued to Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx") (it being
understood that any Common Stock now or hereafter owned by Xxxxxxxxx
other than the Common Stock issued or issuable upon conversion of the
Series B Convertible Preferred Stock shall not be considered Registrable
Securities and shall have no rights under this Agreement nor shall be
subject to any of the restrictions contained in this Agreement); (iii)
stock issued in respect of stock referred to in (i) or (ii) above in any
reorganization, merger, consolidation or sale of all or substantially
all of the Company's assets, or (iv) stock issued in respect of the
stock referred to in (i), (ii) or (iii) as a result of a stock split,
stock dividend, recapitalization or combination."
(b) Section 5(a)(ii) of the Registration Rights Agreement
shall be amended by amending and restating subparagraphs (A) and (E) thereof in
their entirety as follows:
"(A) prior to five (5) years or after nine (9) years from
September 20, 1995;
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(E) after the Company has effected two such registrations
pursuant to this Section 5 and such registrations have been
declared or ordered effective;"
(c) Section 8 of the Registration Rights Agreement shall be
amended and restated in its entirety as follows:
"Section 8. Expenses of Registration. In addition to the fees
and expenses contemplated by Section 9 hereof, all expenses incurred in
connection with two registrations pursuant to Section 5 hereof and all
registrations pursuant to Sections 6 and 7 hereof, including, without
limitation all registration, federal and state filing and qualification
fees, printing expenses, fees and disbursements of counsel for the
Company and underwriters (if the Company or the Holders are required to
bear such fees and disbursements of counsel for the underwriters) and
expenses of any special audits of the Company's financial statements
incidental to or required by such registration, shall be borne by the
Company, except that the Company shall not be required to pay
underwriters' fees, discounts or commissions relating to Registrable
Securities or fees of a separate legal counsel of a Holder."
(d) Section 14 of the Registration Rights Agreement shall be
amended and restated in its entirety as follows:
"Section 14. Transfer of Registration Rights. The rights to
cause the Company to register Registrable Securities of a Holder and
keep information available granted to a Holder by the Company under
Sections 5, 6 and 7 may be assigned by a Holder to any
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partner or shareholder of such Holder, to any other Holder, to a member
of such Holder's Affiliate Group (as defined in the Amended and Restated
Shareholders Agreement dated September 20, 1995 by and among the Company
and the shareholders of the Company parties thereto, as amended from
time to time), or to a transferee or assignee who receives at least the
lesser of such Holder's entire holding of Registrable Securities or
100,000 shares of Registrable Securities (as adjusted for stock splits
and the like; it being understood that for purposes of this Section the
Company's Series A Convertible Preferred Stock and the Company's Series
B Convertible Preferred Stock shall constitute Registrable Securities on
an as-converted basis); provided, that the Company is given written
notice by the Holder at the time of or within a reasonable time after
said transfer, stating the name and address of said transferee or
assignee and identifying the securities with respect to which such
registration rights are being assigned."
(e) Section 16(b) of the Registration Rights Agreement shall
be amended and restated in its entirety as follows:
"(b) Notwithstanding the provisions of paragraph (a) of this
Section 16, the rights of any particular Holder to cause the Company to
register securities under Section 5 shall terminate on September 20,
2004."
(f) Section 17 of the Registration Rights Agreement shall be
amended by amending and restating the second sentence thereof in its entirety
as follows:
"This option must be exercised by written notice to the Company
within two (2) years after September 20, 2004."
2. Agreement of Xxxxxxxxx. By executing the acknowledgment
set forth below, Xxxxxxxxx shall become a party to the Registration Rights
Agreement, as amended hereby.
3. Effect of Amendment. Except as expressly amended hereby,
the Registration Rights Agreement is hereby ratified and confirmed in every
respect and shall remain in full force and effect in accordance with its terms.
4. Counterparts. This Amendment may be executed in any
number of counterparts and by the different parties on separate counterparts,
all of which taken together
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shall constitute one and the same instrument. A facsimile of an executed
counterpart shall be deemed to be an original, executed counterpart.
5. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Texas.
6. Severability. If any provision of this Amendment is to
any extent found to be invalid, illegal or unenforceable in any respect under
applicable law, that provision shall still be effective to the extent it
remains valid, and the remainder of this Amendment also will continue to be
valid.
7. Entire Agreement. This Amendment supersedes all previous
and contemporaneous oral negotiations, commitments, writings and understandings
among the parties hereto concerning the subject matter of this Amendment.
SIGNATURE PAGES FOLLOW
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
PACKAGED ICE, INC.
By
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Its
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NORWEST EQUITY PARTNERS V,
A MINNESOTA LIMITED PARTNERSHIP
By Itasca Partners V,
Its General Partner
By
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Its
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THE FOOD FUND II LIMITED PARTNERSHIP
By
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Its
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The undersigned hereby agrees to
be bound by and will be entitled to
the terms and conditions of the
Registration Rights Agreement,
as amended hereby.
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Xxxxxx X. Xxxxxxxxx
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