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EXHIBIT 10.28
AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDED AND RESTATED VOTING AGREEMENT (the "Agreement") is made
and entered into effective the 20th day of September, 1995, by and among
shareholders of PACKAGED ICE, INC., A TEXAS CORPORATION (the "Company") who
execute a counterpart of this Agreement (individually, a "Shareholder," and
collectively, the "Shareholders") and the Company.
W I T N E S S E T H:
WHEREAS, Norwest Equity Partners V, A Minnesota Limited Partnership
("Norwest") and The Food Fund II, Limited Partnership ("Food Fund") have
purchased a total of 420,000 shares of Common Stock of the Company and 450,000
shares of the Company's Series A Convertible Preferred Stock; and
WHEREAS, there is a continuing desire on behalf of the Shareholders of
the Company to preserve and maintain competent management for the Company; and
WHEREAS, two Voting Agreements pursuant to Article 2.30B of the Texas
Business Corporation Act, as amended (the "TBCA"), were entered into on January
9, 1992, and January 4, 1994, respectively, to ensure competent management for
the Company; and
WHEREAS, the amendment and restatement of the Voting Agreements to
include Norwest and Food Fund and to make other amendments and modifications
thereto is in the best interests of the Company.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
Shareholders hereby amend and restate all prior Voting Agreements between the
Company and its Shareholders as follows:
1. OWNERSHIP OF SHARES. Each Shareholder represents and warrants
to the other Shareholders that, on the date hereof, he beneficially owns and is
the registered holder of the number of shares of common stock, $.01 par value
per share, of the Company ("Common Stock") and Series A Convertible Preferred
Stock ("Series A Preferred Stock") set forth below his name on the signature
page of this Agreement. All of such shares of Common Stock and Series A
Preferred Stock and any additional shares of Common Stock or Series A Preferred
Stock hereinafter acquired by the Shareholders (including, without limitation,
any shares of stock issued in connection with a conversion of Series A
Preferred Stock, stock split, stock dividend or recapitalization of the
Company) are collectively referred to herein as the "Shares."
2. INSPECTION OF AGREEMENT. A counterpart of this Agreement
shall be deposited with the Company at its principal offices, and shall be open
to inspection by any
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shareholder of the Company, in person or by agent or attorney, to the same
extent as such shareholder would be entitled to examine the books and records
of the Company under article 2.44 of the TBCA or other applicable law.
3. STOCK CERTIFICATES. Each certificate representing the Shares,
and each certificate that may be issued and delivered upon transfer of such
Shares, shall contain the following legend:
"The shares evidenced by this certificate are subject to the
provisions of the Amended and Restated Voting Agreement dated
September 20, 1995, a counterpart of which has been deposited with the
Company at its principal office."
4. ELECTION OF DIRECTORS. At each annual meeting of the
shareholders of the Company, or at each special meeting of the shareholders of
the Company involving the election of directors of the Company, and at any
other time at which shareholders of the Company will have the right to or will
vote for or render consent in writing regarding the election of directors of
the Company, then and in each event, the Shareholders hereby covenant and agree
to vote all shares of capital stock of the Company presently owned or hereafter
acquired by them (whether owned of record or over which any person exercises
voting control) in favor of the following actions:
(A) to fix and maintain the number of directors at five (5);
(B) to cause and maintain the election to the Board of
Directors of the Company of (i) Xxxxx X. Xxxxxx ("Xxxxxx"), (ii) one
representative designated by Food Fund, who shall initially be Xxxxxxx Xxxxxxx,
(iii) one representative designated by Norwest, who shall initially be Xxxxxx
X. Xxxxxx, (iv) one representative designated by Xxxxxx X. Xxxxxxxxx, who shall
initially be Xxxxxx X. Xxxxxxxxx and (v) X. X. Xxxxx, III ("Xxxxx").
The rights of a party to designate a representative to be elected to
the Board of Directors shall terminate in the event such party, his Affiliates
and Family Members shall own less than 50% of the Shares which such persons
owned as of the date hereof, adjusted for stock dividends, stock splits,
reverse stock splits, reorganizations, recapitalizations and the like.
"Affiliate" shall have the meaning as set forth in Rule 405 of the Securities
Act of 1933. "Family Member" shall mean such person's spouse, siblings,
parents, children, or other lineal descendants (whether by adoption or
consanguinity), and shall also mean a trust, the primary beneficiary of which
is the person's spouse, siblings, parents, children, or other lineal
descendants (whether by adoption or consanguinity).
None of the parties entitled to designate directors hereunder shall
vote to remove either Stuart, Lewis, or any director designated by any other
party or group of Shareholders pursuant hereto, except for bad faith or willful
misconduct. Each of the parties hereto shall vote or cause to be voted all
shares owned by them or over which they have voting control (i) to remove from
the Board of Directors any director designated by any party pursuant hereto at
the request of such party,
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and (ii) to fill any vacancy in the membership of the Board of Directors with a
designee of the party whose designee's resignation or removal from the Board
caused such vacancy.
The Company shall provide to each party entitled to designate
directors hereunder prior written notice of any intended mailing of notice to
stockholders for a meeting at which directors are to be elected, and any party
entitled to designate directors pursuant hereto shall notify the Company in
writing, prior to such mailing, of the person(s) designated by it or them as
its or their nominee(s) for election as director(s).
If any party entitled to designate directors hereunder fails to give
notice to the Company as provided above, it shall be deemed that the designee
of such party then serving as director shall be its designee for reelection.
Each party entitled to designate directors hereunder hereby agrees
that the Company shall not have any executive or similar committee of the Board
of Directors unless the Board of Directors unanimously consents to the
formation of such committee.
If Stuart or Xxxxx shall cease to serve for any reason, the
Shareholders will negotiate in good faith a replacement for Stuart or Xxxxx
and, failing agreement, such replacement shall be designated by the majority of
the Shareholders.
5. TERM. The term of this Agreement shall commence on the date
hereof and shall continue until the earlier of (i) the written agreement
executed by the holders of not less than eighty percent (80%) of the
Shareholders (in interest, with Common Stock and Series A Preferred Stock
voting as a single class, with the Series A Preferred Stock Voting on an
as-converted basis) to terminate this Agreement; (ii) the completion by the
Company of a firmly underwritten initial public offering of the Company's
Common Stock pursuant to the Securities Act of 1933, as amended, resulting in
aggregate net proceeds to the Company and its Shareholders of $7,500,000 or
more; or (iii) the merger or consolidation of the Company with or into another
entity which results in the Shareholders of the Company holding less than 50%
of the voting securities of the surviving entity, or the sale of all or
substantially all of the Company's assets.
6. SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, legal
representatives and assigns (including each 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 term "Shareholder"
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.
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7. ENFORCEABILITY. The Shareholders jointly and severally agree
that upon deposit of a counterpart of this Agreement at the principal office of
the Company as provided above and upon endorsement of the above-described
legend upon the certificates representing the Shares, this Agreement shall be
specifically enforceable by the Shareholders in a court of competent
jurisdiction, which remedy shall be in addition to and not exclusive of any
other remedies that may be available to them at law or in equity.
8. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
9. AMENDMENT. This Agreement may be amended, and any provision
hereof may be waived, only by a written agreement executed by 80% of the
Shareholders (in interest, with the Common Stock and Series A Preferred Stock
voting as a single class, with the Series A Preferred Stock Voting on an
as-converted basis.)
10. ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding of the parties with respect to the subject matter
hereof. Any and all prior Voting Agreements, discussions, representations,
negotiations, understandings and agreements are hereby merged into this
Agreement and shall not survive the execution hereof.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
instrument. A facsimile of an executed Agreement shall be deemed to be an
original, executed counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
The Company: PACKAGED ICE, INC.
By:
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XXXXX X. XXXXXX, President
SIGNATURE PAGE FOLLOWS
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Shareholders:
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Printed Name:
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Number of Shares of Common Stock:
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Number of Shares of Series A Preferred
Stock:
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