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EXHIBIT 10.40
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is entered into on July 17,
1997 by and among shareholders (the "Shareholders") of PACKAGED ICE, INC., A
TEXAS CORPORATION (the "Company"), SV CAPITAL PARTNERS, L.P., (the "Investor")
and certain shareholders of the Company listed on the last page of this
Agreement (individually, a "Shareholder," and collectively, the
"Shareholders").
W I T N E S S E T H:
WHEREAS, the Investor has acquired a total of 300,000 shares of
Common Stock (the "Shares") of the Company and a Warrant to purchase 100,000
shares of Common Stock; and
WHEREAS, there is a continuing desire on behalf of the Shareholders
to agree to elect one representative of the Investor to the Board of Directors.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
Shareholders hereby agree as follows:
1. OWNERSHIP OF SHARES. Each Shareholder represents and warrants
to the Investor 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") and Series B Convertible Preferred Stock ("Series
B Preferred Stock") set forth on the counterpart signature page executed by
such Shareholder. All of such shares of Common Stock, Series A Preferred
Stock, Series B Preferred Stock and any additional shares of Common Stock,
Series A Preferred Stock or Series B 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, Series B 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 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 Texas Business
Corporation Act or other applicable law.
3. STOCK CERTIFICATES. Each new 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 Voting Agreement dated July 17, 1997, a counterpart
of which has been deposited with the Company at its principal office."
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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) to cause and maintain the election to the Board of Directors of
the Company one representative designated by the Investor, who shall initially
be Xxx Xxxxx.
The rights of the Investor to designate a representative to be elected
to the Board of Directors shall terminate in the event the Investor
collectively shall own less than 50% of the Shares which Investor owned as of
the date hereof, adjusted for stock dividends, stock splits, reverse stock
splits, reorganizations, recapitalizations and the like.
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 the Investor at the request of
the Investor (by majority vote of the shares held by the persons making up the
Investor), and (ii) to fill any vacancy in the membership of the Board of
Directors with a designee of the Investor whose designee's resignation or
removal from the Board caused such vacancy.
The Company shall provide to the Investor prior written notice of any
intended mailing of notice to shareholders for a meeting at which directors are
to be elected, the Investor 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.
If the Investor fails to give notice to the Company as provided above,
it shall be deemed that the Investor's designee then serving as director shall
be its designee for reelection.
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 Investor and the holders of not less than eighty percent (80%)
of the Shares held by Shareholders other than the Investor, to terminate this
Agreement; (ii) the written agreement of the Investor to terminate this
Agreement, (iii) 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 shareholders of $7,500,000 or more; or (iv) 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
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transferee of any party's Common Stock, Series A Preferred Stock and Series B
Preferred 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.
7. ENFORCEABILITY. The Shareholders and the Investor jointly and
severally agree that upon deposit of a counterpart of this Agreement at the
principal office of the Company as provided above, this Agreement shall be
specifically enforceable by the Investor 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 the Investor and
the holders of 80% of the total Shares held by the Shareholders other than the
Investor.
10. ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding of the parties with respect to the subject matter
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.
SIGNATURE PAGE FOLLOWS
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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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Name:
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Title:
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The Investor: SV CAPITAL PARTNERS, L.P.
By:
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Name:
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Title:
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SIGNATURE PAGE FOLLOWS
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SHAREHOLDER COUNTERPART SIGNATURE PAGE
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Name of Shareholder if Entity/Signature if Individual
By
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Title:
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Please type or print name
Number of Shares of Common Stock:
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Number of Shares of Series A or Series B Convertible Preferred Stock:
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