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EXHIBIT 10.11
TRANSFER RESTRICTION AGREEMENT
This TRANSFER RESTRICTION AGREEMENT (this "Agreement") is entered into
as of December 2, 1997, by and between Packaged Ice, Inc., a Texas corporation
(the "Company"), and Xxxxx Xxxxxxxxx, an individual residing in the state of New
York (the "Investor").
W I T N E S S E T H :
WHEREAS, the Investor has agreed to purchase 15,000 shares of the
Company's 10% Exchangeable Preferred Stock (the "10% Preferred Stock") and 6
shares of the Company's Series C Preferred Stock (the "Series C Preferred
Stock") and Warrants (the "Warrants") to acquire 115,385 shares of common stock
par value $.01 per share ("Common Stock"); and
WHEREAS, for the purposes of this Agreement, the Series C Preferred
Stock, the Warrants, any additional warrants (as calculated in Section 4.7 of
the Securities Purchase Agreement dated December 2, 1997 between the Company and
the Investor (the "Securities Purchase Agreement")), and any shares of Common
Stock acquired through the exercise of the Warrants or any other warrants, which
are acquired by the Investor on or after the date hereof shall hereinafter
collectively be referred to as the "Securities." The defined term Securities
shall not include shares of the 10% Preferred Stock.
NOW, THEREFORE, for and in consideration of the premises set forth
above, the mutual promises, covenants and agreements contained in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Investor agree
as follows:
1. RESTRICTION ON TRANSFER OF STOCK
1.1. Without the prior written consent of the Company as
authorized by a majority of the Board of Directors of the Company, Investor
shall not sell, make a gift of, assign, transfer or otherwise dispose of
(collectively, a "Transfer") any of the Securities or any right, title or
interest therein, to Suiza Foods Corporation, Reddy Ice Corporation ("Reddy
Ice") and their respective subsidiaries, affiliates, and successors resulting
from a Business Combination. For the purposes of this Agreement, "Business
Combination" shall mean a merger, consolidation or sale of substantially all of
the assets of a corporation or other entity. Any purported Transfer in violation
of any provision of this Agreement shall not operate to transfer any interest to
the intended transferee, and shall not be given any effect by the Company.
1.2. All Securities now owned or hereafter acquired by the
Investor shall be issued, held and transferred in accordance with, and shall at
all times be subject to, the terms and conditions of this Agreement. Any
Transfer of such Securities (in accordance with this Agreement) shall be
contingent upon the transferee either (a) executing and delivering to the
Company a written agreement containing substantially the same terms set forth
herein, or (b) becoming a party to the Amended and Restated Shareholders
Agreement dated September 20,
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1995, as amended, by delivering signed signature pages of the aforementioned
Amended and Restated Shareholders Agreement to the Company.
1.3. Each certificate representing Securities now owned or
hereafter acquired by the Investor shall be endorsed substantially as follows:
"The Securities represented by this Certificate and the
Transfer thereof are subject to and restricted by a Transfer
Restriction Agreement entered into by the Company and the holder
hereof, a copy of which may be obtained without charge by the holder
hereof upon written request to the Company at its principal office."
2. TERMINATION
This Agreement shall terminate upon the occurrence of any one
of the following events:
(a) the Company permanently ceases to do business;
(b) the Company and Reddy Ice consummate a Business Combination;
(c) the shareholders of the Company, as of the date hereof, own
less than 50% of the stock outstanding of the Company after a
Business Combination;
(d) the consummation of a sale of all or substantially all of the
Company's assets, or the sale of a majority of the Common Stock
by the holders thereof, or a merger or consolidation of the
Company (other than a merger or consolidation in which the
holders of a majority of the outstanding Common Stock as of the
date immediately prior to the merger or consolidation maintain
ownership of a majority of the voting securities of the surviving
or resulting entity);
(e) there is consummated an underwritten public offering of the
Company's common stock, which results in net proceeds to the
Company and the shareholders of at least $40,000,000;
(f) the written agreement of the Investor and the Company; or
(g) the occurrence of any monetary default by the Company under the
10% Exchangeable Preferred Stock, the Company's bank credit
facility or any indenture to which the Company is subject,
however, only after the expiration of any applicable notice and
cure period, where such monetary default remains uncured.
3. GENERAL
3.1. Delivery of Notices. Any notice, offer, demand, payment,
request, response or other communication required or permitted hereunder shall
be given in writing, by personal
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delivery, fax, express mail, or by United States certified mail (postage
prepaid, return receipt requested) to the Company and the Investor at their
respective addresses set forth below:
If to the Company: Packaged Ice, Inc.
Attn.: President
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
If to the Investor: Xxxxx Xxxxxxxxx
c/o Xxxxxxx Xxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
or to such other address as the party to receive such communication has
last designated by written notice delivered to the other party in accordance
with the foregoing provisions. All communications (including offers) hereunder
shall be deemed "dated" (i) when sent or dispatched, if given in accordance with
this Section 3.1 or (ii) when received, if given in any other manner. Any time
period referenced in this Agreement shall be deemed to include the last day of
such period.
3.2. Further Assurances. Each party hereto agrees to perform any
further acts, and to execute and deliver any further documents or instrument,
which may be reasonably necessary to carry out the provisions of this Agreement.
3.3. Severability. In the event any of the provisions of this
Agreement are held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions shall
not be affected thereby.
3.4. Binding Effect and Assignment. Subject to the restrictions
against transfer as set forth herein, this Agreement shall be binding upon and
inure to the benefit of the parties hereto, their respective legal
representatives, successors and assigns.
3.5. Captions and Section Headings. Captions and section headings
used herein are for convenience only and shall not be used in construing this
Agreement. All section cross-references are to sections within this Agreement.
3.6. Governing Law. This Agreement has been executed in and shall
be governed by the laws of the State of Texas.
3.7. Waiver. No waiver or indulgence by either party of any
failure by the other party to keep or perform any terms or provision of this
Agreement shall be a waiver of any preceding or succeeding breach of the same or
of any other term or provision of this Agreement.
3.8. Confidentiality. Except as otherwise set forth herein or as
otherwise required by law, including the federal securities law, the Company and
the Investor agree to maintain in confidence the terms of this Agreement.
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3.9. Gender. Whenever herein, the masculine gender shall include
the feminine and neuter genders, and vice versa, as the context may require.
3.10. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Investor have executed this
Transfer Restriction Agreement on the date first above written.
SIGNATURE PAGE FOLLOWS
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TRANSFER RESTRICTION AGREEMENT SIGNATURE PAGE
"COMPANY" PACKAGED ICE, INC.
By:
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X.X. Xxxxx III, President
"INVESTOR" XXXXX XXXXXXXXX
By:
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Xxxxx Xxxxxxxxx
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