1
EXHIBIT 10.16
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT
AND
CONSENT AND WAIVER
(ROSENBERG, JESSELSON, ET AL)
This Amendment No. 2 to Stock Purchase Agreement and Consent and
Waiver ("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
whose signatures are set forth on the signature page hereof (the "Consenting
Shareholders").
W I T N E S S E T H
WHEREAS, the persons listed on Exhibit A attached hereto (the
"Investors") purchased shares of the Company's $.01 par value common stock,
(the "Common 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
Investors the right of first refusal to purchase additional securities; 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
of 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 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").
WHEREAS, the Consenting Shareholders are desirous of consenting to the
Acquisitions
2
Issuance and the Units Issuance and 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."
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 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) 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; (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. 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.
2
3
6. The amendment set forth herein shall be effective when
executed by the Company and Investors holding two-thirds of the Securities
issued under the Stock Purchase Agreement.
7. This Amendment, Consent and Waiver shall be construed and
enforced in accordance with the laws of the State of Texas.
8. 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:
----------------------------------------
Xxxxx X. Xxxxxx, Chief Executive Officer
SIGNATURE PAGE FOLLOWS
3
4
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT
AND
CONSENT AND WAIVER
(ROSENBERG, JESSELSON, ET AL)
CONSENTING SHAREHOLDERS COUNTERPART SIGNATURE PAGE
Executed effective March 14, 1997:
-------------------------------------
Name of Investor if Entity/Signature
if Individual
By:
----------------------------------
Title:
-------------------------------
-------------------------------------
Please type or print name
4
5
EXHIBIT A
=============================================================================================
SHARES OF COMMON STOCK ISSUED
INVESTORS' NAMES AND ADDRESSES UNDER STOCK PURCHASE AGREEMENT
---------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxxx, Xxxx Xxxx, Xxxxxx Xxxxxxx, 50,000
Xxxxxxx X. Xxxxxxxxx, Xxxxxxxx X. Xxxxxxxxx
Trustees UID 12/18/80 FBO Xxxxxxx X. Xxxxxxxxx
1301 Avenue of the Americas
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
---------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxxx, Xxxx Xxxx, Xxxxxx Xxxxxxx, 50,000
Xxxxxxx X. Xxxxxxxxx, Xxxxxxxx X. Xxxxxxxxx
Trustees
UID 12/18/80 FBO Grandchildren
1301 Avenue of the Americas
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
---------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxxx 100,000
00000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
---------------------------------------------------------------------------------------------
J. Xxxx Xxxxxxxx 10,000
ABS Plaza
00000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
---------------------------------------------------------------------------------------------
Lancer Corporation 45,000
000 X. Xxxxx
Xxx Xxxxxxx, XX 00000
---------------------------------------------------------------------------------------------
Southwest Texas Equipment 15,000
Distributors, Inc.
Attention: Xxxx Xxxxx, III, President
0000 X. Xxxxxxx
Xxx Xxxxxxx, XX 00000
---------------------------------------------------------------------------------------------
Xxxx Xxxxxx 5,000
Xxxxxxxx Media Systems
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
---------------------------------------------------------------------------------------------
Xxxxxxxxx Xxxxxxxxxx Xxxxxxx 5,000
Grupo Comercial Santa Fe
Diego de Almagro #105 Pte.
Col. Mirasierra
San Xxxxx Xxxxx Xxxxxx, N.L. C.P. 66240
---------------------------------------------------------------------------------------------
