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EXHIBIT 4.4
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "AGREEMENT") is made and
entered into as of the 30th day of April, 1998, between Packaged Ice, Inc., a
Texas corporation (the "COMPANY"), and the investors set forth on Schedule I
hereto (each an "INVESTOR" and collectively the "INVESTORS").
W I T N E S S E T H:
WHEREAS to obtain additional equity financing, the Company desires to
issue and sell to the Investors 400,000 shares of its 13% Exchangeable Preferred
Stock, Series A, par value $.01 per share ("13% PREFERRED STOCK"), and warrants
to purchase 975,752 shares of common stock, par value $.01 per share ("COMMON
STOCK") at an exercise price of $.01 per share (the "WARRANTS"), and the
Investors desire to purchase such 13% Preferred Stock and Warrants at the price
and on the terms and subject to the conditions as set forth in this Agreement;
NOW THEREFORE, in consideration of the premises and of the mutual
covenants, agreements, representations and warranties herein contained, the
parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF SECURITIES
1.1 Issuance and Sale of Securities. At the Closing (as
defined below), subject to the terms and conditions of this Agreement and on the
basis of the representations and warranties set forth herein, the Company agrees
to issue and sell to the Investors, and the Investors agree, severally and not
jointly, to purchase from the Company, 400,000 shares of the 13% Preferred Stock
and the Warrants for an aggregate purchase price of $40,000,000. The 13%
Preferred Stock and the Warrants are sometimes collectively hereinafter referred
to as the "SECURITIES." The respective amounts of the Securities to be so
purchased by the several Investors are set forth opposite their names in
Schedule I hereto and the obligation to purchase such agreement shall be
several.
1.2 Delivery and Payment. At the Closing, the Company will
execute and deliver to the Investors certificates evidencing 400,000 shares of
the 13% Preferred Stock pur chased hereunder and Warrants in the form of Exhibit
A attached hereto, against payment, in immediately available funds, by the
Investors to the Company of $40,000,000 (the "Purchase Price").
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1.3 Closing. The consummation of the issuance, sale and
purchase of the Securities shall be effected on April 30, 1998 (the "CLOSING
DATE") at the offices of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., 300 Convent,
0000 XxxxxxxXxxx Xxxxx, Xxx Xxxxxxx, Xxxxx commencing at 10:00 a.m. (the
"CLOSING"), respectively, or at such other time or place as the
Company and the Investor shall mutually agree.
1.4 Allocation of Purchase Price. The Purchase Price shall be
allocated among the 13% Preferred Stock and Warrants for all purposes
(including, but not limited to, financial accounting and tax purposes) in
accordance with the allocation schedule set forth on Appendix A hereto.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investors as
follows:
2.1 Organization and Standing of the Company. The Company and
each of its subsidiaries is a corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation and has all
requisite corporate power and authority to issue the Securities and to own its
properties and assets and to carry on its business as now conducted and as
proposed to be conducted. The Company and each of its subsidiaries is duly
qualified to transact business and is in good standing in all jurisdictions in
which such qualification is required. The copies of the Articles of
Incorporation and Bylaws, each as amended and restated as of the date hereof, of
the Company and each of its subsidiaries delivered to the Investors prior to the
execution of this Agreement are true and complete copies of the duly and legally
adopted Articles of Incorporation and Bylaws, each as amended and restated as of
the date hereof, of the Company and its subsidiaries in effect as of the date of
this Agreement.
2.2 Capitalization of the Company. (a) The authorized capital
stock of the Company consists of 50,000,000 shares of common stock, par value
$.01 per share (the "COMMON STOCK"), of which 5,044,310 shares are issued and
outstanding and of which 298,231 shares are held as treasury stock, and
5,000,000 shares of preferred stock, par value $.01 per share. The Company's
Board of Directors (the "BOARD OF DIRECTORS") has authorized the designation of
2,750,100 shares of preferred stock as follows: 450,000 shares as the Series A
Convertible Preferred Stock (the "SERIES A PREFERRED STOCK"), of which all of
the authorized shares are issued and outstanding; 200,000 shares as the Series B
Convertible Preferred Stock (the "SERIES B PREFERRED STOCK"), of which 124,831
shares are issued and outstanding; 500,000 shares as the 10% Exchangeable
Preferred Stock (the 10% PREFERRED STOCK"), of which 250,000 shares are issued
and outstanding; 100 shares as the Series C Preferred Stock ("SERIES C PREFERRED
STOCK"), of which 100 shares are issued and outstanding; and 800,000 shares as
the 13% Preferred Stock, of which 400,000 shares will be issued and outstanding
upon the Closing; and 800,000 shares as the 13% Exchangeable Preferred Stock
Series B (the 13% SERIES B PREFERRED STOCK") which will be reserved for issues
as Exchange Securities (as defined in the
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Exchange Offer Registration Rights Agreement). Except as set forth on Section
2.2 of the Disclosure Schedule, attached hereto and incorporated herein by
reference (the "DISCLOSURE SCHEDULE"), at the Closing there will be no other
warrants, options, subscriptions or other rights or preferences (including
conversion or preemptive rights) outstanding to acquire capital stock of the
Company or its subsidiaries, or notes, securities or other instruments
convertible into or ex changeable for capital stock of the Company, nor any
commitments, agreements or understandings by or with the Company with respect to
the issuance thereof, nor any obligation to repurchase or redeem any capital
stock of the Company. Except as set forth on Section 2.2 of the Disclosure
Schedule, no shareholders of the Company have any right to require the
registration of any securities of the Company or to participate in any such
registration. All outstanding securities of the Company have been issued in
compliance with an exemption or exemptions from the registration and prospectus
delivery requirements of the Securities Act of 1933, as amended (the "SECURITIES
ACT") and from the registration and qualification requirements of all applicable
state securities laws.
(b) Upon issuance, the 13% Preferred Stock shall, with respect to
dividend distributions and distributions upon the liquidation, winding-up or
dissolution of the Company, rank senior to (i) all classes of common stock of
the Company and (ii) each other class of capital stock or series of Preferred
Stock of the Company now existing, including Series A Preferred Stock, the
Series B Preferred Stock, the Series C Preferred Stock and the 10% Preferred
Stock.
2.3 Duly Issued. All of the issued and outstanding shares of
capital stock of the Company have been duly authorized, are validly issued,
fully paid and non-assessable. Upon issuance and delivery to the Investors of
the 13% Preferred Stock against payment of the purchase price therefor pursuant
to this Agreement, such shares will be validly issued, fully paid and
non-assessable, and free and clear of all claims, liens, pledges, options,
charges, security interests, mortgages, deeds of trust, encumbrances or rights
of any third party of any nature whatsoever. The issuance and sale of the 13%
Preferred Stock, the Warrants and the Common Stock to be issued from exercise
of the Warrants pursuant hereto will not give rise to any preemptive rights or
rights of first refusal which have not been duly waived by the holders thereof
and will not violate any laws to which the Company or any of its assets are
subject. The Company will at all times reserve and keep available out of its
authorized but unissued shares of Common Stock such number of shares of Common
Stock issuable upon exercise of the Warrants and such shares of Common Stock,
when issued upon exercise, will be duly authorized, validly issued and
outstanding, fully paid and nonassessable.
2.4 Authorization. This Agreement, the Warrants in the form
attached hereto as Exhibit A, the Exchange Offer Registration Rights Agreement
dated as of the date hereof between the Company and the Investors (the "EXCHANGE
OFFER REGISTRATION RIGHTS AGREEMENT") in the form attached hereto as Exhibit B,
the Registration Rights Agreement dated as of the date hereof between the
Company and the Investors in the form attached hereto as Exhibit C (the
"REGISTRATION RIGHTS AGREEMENT" and together with the Exchange Officer
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Registration Rights Agreement, the "REGISTRATION RIGHTS AGREEMENTS"), the
Preferred Stock Series Designation Certificate of Resolution of the Company,
providing for the issuance of the 13% Preferred Stock (the "CERTIFICATE OF
RESOLUTION") in the form attached hereto as Exhibit D, and each other agreement
required to be entered into by the Company pursuant to the terms and conditions
hereof, when executed and delivered by the Company, will have been duly
authorized, executed and delivered by and on behalf of the Company, and will
constitute the valid and binding agreements of the Company, enforceable in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally. The Company has the requisite corporate power and authority to
enter into this Agreement and to perform its obligations hereunder.
2.5 Subsidiaries. Except as set forth on Section 2.5 of the
Disclosure Schedule, the Company has no subsidiaries and does not, directly or
indirectly, own any interest in any corporation, partnership, firm or other
business entity. The Company is not a participant in any joint venture,
partnership or similar agreement. Section 2.5 of the Disclosure Schedule
accurately sets forth the name of each corporation, partnership, firm or other
business entity in which the Company has an interest, the state of organization,
and the percentage ownership by the Company.
2.6 Financial Position; Absence of Undisclosed Liabilities.
(a) The Company has furnished to the Investors the
financial statements described in Section 2.6 of the Disclosure
Schedule (collectively referred to herein as the "FINANCIAL
STATEMENTS"). The Financial Statements present fairly the financial
position of the Company and its subsidiaries as of such dates,
respectively, all in conformity with generally accepted accounting
principles, consistently applied, following in the case of the
unaudited interim financial statements the Company's normal internal
accounting practices and year end adjustments. Except as set forth in
the Financial Statements or in Section 2.6(a) of the Disclosure
Schedule, neither the Company nor its subsidiaries have any
Liabilities, except for Liabilities which have arisen after February
28, 1998 in the ordinary course of business, consistent with past
practices and none of which individually or in the aggregate have a
material adverse effect on the Company. "LIABILITIES" shall include,
without limitation, any indebtedness, guaranty, endorsement, claim,
loss, damage, deficiency, cost, expense, obligation or responsibility,
whether known or unknown, asserted or unasserted, absolute or
contingent, accrued or unaccrued, liquidated or unliquidated or due or
to come due.
(b) Except as set forth on Section 2.6(b) of the
Disclosure Schedule, since February 28, 1998, no event or condition has
occurred, and no event or condition is to the knowledge of the
Company's executive officers threatened which has had a materially
adverse effect, or could reasonably be expected to have a materially
adverse effect, on the Company's or any subsidiary's properties,
assets, or financial position.
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2.7 Tax Returns. Each of the Company and its subsidiaries has
timely filed all Tax Returns (as defined below), required by law and has paid
all Taxes required to be paid, together with any penalties and interest except
where the failure to pay would not individually or in the aggregate have a
materially adverse effect on the Company. The Tax Returns are true and correct
in all material respects. There is no pending dispute with any taxing authority
relating to any of the Company's or its subsidiaries' Tax Returns except as set
forth in Section 2.7 of the Disclosure Schedule. There is no tax audit of any
Tax Return of the Company or any subsidiaries pending or currently in process.
The Company and its subsidiaries have paid all Taxes and assessments determined
to be owing as a result of any prior audit. The Company has not elected
pursuant to the Internal Revenue Code of 1986, as amended (the "CODE"), to be
treated as an S corporation or a collapsible corporation pursuant to Section
1362(a) or Section 341(f) of the Code, nor has it made other elections that
would have a material adverse effect on the business, properties, prospects or
financial condition of the Company or its subsidiaries. The Company and its
subsidiaries have withheld or collected from each payment made to each
employee, the amount of substantially all Taxes, including, but not limited to,
federal income taxes, Federal Insurance Contribution Act taxes and Federal
Unemployment Tax Act taxes required to be withheld or collected therefrom, and
has paid the same to the proper tax receiving offices or authorized
depositories. For purposes of this Agreement, (i) the term "TAXES" shall mean
all taxes, charges, fees, levies or other assessments, including, without
limitation, income, gross receipts, excise, property, sales, occupation, use,
service, service use, license, payroll, franchise, transfer and recording
taxes, fees and charges imposed by the United States or any state, local or
foreign government or subdivision or agency thereof, whether computed on a
separate, consolidated, unitary, combined or any other basis; and such term
shall include any interest, liabilities, additional amounts, penalties and
additions to tax and (ii) the term "TAX RETURN" shall mean any report, return,
information return or other document (including related or supporting
information) filed or required to be filed by the Company or its subsidiaries
with any governmental or regulatory authority or other authority in connection
with the determination, assessment or collection of any Taxes (whether or not
such Taxes are imposed on the Company or its subsidiaries) or the
administration of any law, regulation or administrative requirements relating
to any Taxes, except where the failure to file would not individually or in the
aggregate have a materially adverse effect on the Company.
2.8 Title to Properties. Except as set forth on Section 2.8 of
the Disclosure Schedule, each of the Company and its subsidiaries has good and
marketable title to, and the exclusive use of, all of its tangible properties
and assets, free and clear of all mortgages, liens, claims and encumbrances
except liens that do not materially affect the operation of the business of the
Company.
2.9 ERISA.
(a) The Company and each subsidiary have complied in
all material respects with the Employee Retirement Income Security Act
of 1974, as amended from time to time ("ERISA"), and, where applicable,
the Code, regarding each Plan.
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(b) Each Plan is, and has been, maintained in
substantial compliance with ERISA and, where applicable, the Code. With
respect to each Plan that is intended to meet the requirements of
Section 401(a) of the Code, the Company has applied for and received a
currently effective determination letter from the Internal Revenue
Service stating that the Plan has met such requirements. "PLAN" shall
mean any employee pension benefit plan, as defined in Section 3(2) of
ERISA, which (i) is currently or hereafter sponsored, maintained or
contributed to by the Company or any subsidiary or an ERISA Affiliate
or (ii) was at any time during the preceding six calendar years,
sponsored, maintained or contributed to, by the Company or any
subsidiary or an ERISA Affiliate.
(c) No act, omission or transaction has occurred that
could result in imposition on the Company or any subsidiary (whether
directly or indirectly) of (i) either a civil penalty assessed pursuant
to section 502(c), (i) or (1) of ERISA or a tax imposed pursuant to
Chapter 43 of Subtitle D of the Code or (ii) breach of fiduciary duty
liability damages under section 409 of ERISA.
(d) No Plan (other than a defined contribution plan)
or any trust created under any such Plan has been terminated since
September 2, 1974. No liability under Title IV of ERISA has been or is
expected by the Company, any subsidiary or any ERISA Affiliate to be
incurred with respect to any Plan. No ERISA Event with respect to any
Plan has occurred. "ERISA EVENT" shall mean (i) a "Reportable Event"
described in Section 4043 of ERISA and the regulations issued
thereunder, (ii) the withdrawal of the Company, any subsidiary or any
ERISA Affiliate from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, (iii)
the filing of a notice of intent to terminate a Plan or the treatment
of a Plan amendment as a termination under Section 4041 of ERISA, (iv)
the institution of proceedings to terminate a Plan by the PBGC, or (v)
any other event or condition that might constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan. "ERISA AFFILIATE" shall mean each
trade or business (whether or not incorporated) which together with the
Company or any subsidiary would be deemed to be a "single employer"
within the meaning of Section 4001(b)(1) of ERISA or subsections (b),
(c), (m) or (o) of section 414 of the Code.
(e) Full payment when due has been made of all
amounts that the Company or any subsidiary is required under the terms
of each Plan or applicable law to have paid as contributions to such
Plan, and no accumulated funding deficiency (as defined in section 302
of ERISA and section 412 of the Code), whether or not waived, exists
with respect to any Plan.
(f) The actuarial present value of the benefit
liabilities under each Plan that is subject to Title IV of ERISA does
not, as of the end of the Company's most
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recently ended fiscal year, exceed the current value of the assets
(computed on a plan termination basis in accordance with Title IV of
ERISA) of such Plan allocable to such benefit liabilities. The term
"actuarial present value of the benefit liabilities" shall have the
meaning specified in section 4041 of ERISA.
(g) None of the Company, any subsidiary or any ERISA
Affiliate sponsors, maintains, or contributes to an employee welfare
benefit plan, as defined in section 3(l) of ERISA, including, without
limitation, any such plan maintained to provide benefits to former
employees of such entities, that may not be terminated by the Borrower,
a subsidiary or any ERISA Affiliate in its sole discretion at any time
without any material liability. Furthermore, with respect to each such
employee welfare benefit plan, (i) the plan is, and has been,
maintained in substantial compliance with ERISA and, where applicable,
the Code, (ii) no act, omission or transaction has occurred that could
result in imposition on the Company, any subsidiary or any ERISA
Affiliate (whether directly or indirectly) of (a) either a civil
penalty assessed pursuant to Section 502(c), (i) or, (l) of ERISA or a
tax imposed pursuant to Chapter 43 of Subtitle D of the Code or (b)
breach of fiduciary duty liability damages under Section 409 of ERISA
and (iii) full payment when due has been made of all amounts that the
Company, any subsidiary or any ERISA Affiliate is required under the
terms of each such plan or applicable law to have paid as contributions
to the plan.
(h) None of the Company, any subsidiary or any ERISA
Affiliate sponsors, maintains or contributes to, or has at any time in
the preceding six calendar years sponsored, maintained or contributed
to, any Multiemployer Plan. "MULTIEMPLOYER PLAN" shall mean a Plan
defined as such in Section 3(37) or 4001(a)(3) of ERISA.
(i) None of the Company, any subsidiary or any ERISA
Affiliate is required to provide security under Section 401(a)(29) of
the Code due to a Plan amendment that results in an increase in current
liability for the Plan.
2.10 No Default or Conflict. Neither the Company nor its
subsidiaries is in breach or default of any term or provision of their
respective Articles of Incorporation or bylaws, or any material term or
provision of any mortgage, indenture, instrument, lease, contract, commitment or
other agreement to which the Company or any of its subsidiaries is a party or by
which it is bound, or of any provision of any governmental statute, rule or
regulation applicable to or binding upon the Company or any of its subsidiaries,
except where the failure to be in compliance would not, individually or in the
aggregate, have a material adverse effect on the Company. Neither the execution
and delivery of this Agreement and the other agreements required to be executed
and delivered pursuant to the terms and conditions of this Agreement nor the
consummation of the transactions contemplated thereby will (a) conflict with, or
result in a breach of the terms, conditions or provisions of, or constitute a
default under, (i) the Articles of Incorporation or bylaws of the Company or any
of its subsidiaries, (ii) any agreement or instrument to which the Company or
any of its subsidiaries is now a party or by which any of
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them is bound, or (iii) any provision of any judgment, decree, order, statute,
rule or regulation applicable to or binding on the Company or any of its
subsidiaries or (b) result in the creation of any mortgage, pledge, lien,
encumbrance, or charge upon any of the properties or assets of the Company or
any of its subsidiaries. Except as contemplated by Sections 5.8 and 5.10 hereof,
neither the issuance and sale of the Securities, the execution, delivery and
performance by the Company of this Agreement, the Warrants, the Registration
Rights Agreements or the Certificate of Resolution, nor the consummation by the
Company of the transactions contemplated hereby or thereby requires any consent,
approval, authorization or other order of or registration or filing with, any
court, regulatory body, administrative agency or other governmental body, agency
or official, or any other third party.
2.11 Litigation. Except as set forth in Section 2.11 of the
Disclosure Schedule, there is no litigation or other legal, administrative or
governmental proceeding pending or, to the knowledge of the officers of the
Company, threatened against or relating to the Company, its subsidiaries, or
their respective properties or business, that if determined adversely to the
Company or its subsidiaries may reasonably be expected to have a material
adverse effect on the present or future operations or financial condition of the
Company.
2.12 Court Orders, Decrees, Etc. Except as set forth in
Section 2.12 of the Disclosure Schedule, there is no outstanding order, writ,
injunction or decree of any court, governmental agency or arbitration tribunal
against or adversely affecting the Company, its subsidiaries, or their
respective properties or business.
2.13 Franchises, Permits, and Consents. Each of the Company
and its subsidiaries possesses all material governmental franchises, licenses,
permits, consents, authorizations, exemptions and orders, required by the
Company and its subsidiaries to carry on their businesses as now being
conducted. All material registrations, designations and filings with all
governmental authorities required in the conduct of the businesses of the
Company or its subsidiaries or in connection with the consummation of the
transactions contemplated by this Agreement have been made or obtained.
2.14 Insurance. The Company and its subsidiaries have been and
are insured by financially sound and reputable insurers unaffiliated with the
Company in such amounts and against such risks as are sufficient for compliance
with law and as are adequate in the judgment of the Company to protect the
properties and businesses of the Company.
2.15 Securities Law Compliance. The offer, issuance and sale
of the Securities to be issued hereunder has been made in material compliance
with all applicable federal and state securities laws. Neither the Company nor
anyone acting on its behalf has offered any of the Securities (or similar
securities) for sale to, or solicited offers to buy any of the Securities (or
similar securities) from, any prospective purchaser, so as to make the issuance
and sale of the Securities hereunder subject to the registration requirements of
the Securities Act or applicable state securities laws.
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2.16 Finders' Fees. The Company has incurred no liability for
commissions or other fees to any finder or broker in connection with the
transactions contemplated by this Agreement.
2.17 Intellectual Property. Except as set forth on Section
2.17 of the Disclosure Schedule, to the actual knowledge of the Company's
officers:
(a) Other than as set forth on Schedule 2.17(a), the
Company and its subsidiaries own or have the right to use pursuant to
license, sublicense, public domain, agreement, or permission, without
payment (except where such payment is not material) (i) all inventions
(whether patentable or unpatentable and whether or not reduced to
practice), all improvements thereto, and all patents, together with all
reissuances, revisions, extensions, and reexaminations thereof, (ii)
all trademarks, service marks, trade dress, logos, trade names, and
corporate names, including all goodwill associated therewith, and all
applications, registrations, and renewals in connection therewith,
(iii) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith, (iv) all mask
works and all applications, registrations and renewals in connection
therewith, (v) all trade secrets and confidential business information
(including ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and techniques,
technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information, and business and
marketing plans and proposals), (vi) all other proprietary rights, and
(vii) all copies and tangible embodiments thereof (in whatever form or
radius) (collectively, "INTELLECTUAL PROPERTY"), currently being used
or reasonably anticipated to be used in the operation of the Company's
business, including, without limitation, such Intellectual Property
relating to the Packaged Ice System, and such rights will not cease to
be valid rights of the Company, without payment, by reason of the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby.
(b) None of the Company and its subsidiaries has
knowingly interfered with, infringed upon, misappropriated, or
otherwise come into conflict with any Intellectual Property rights of
third parties, and none of the Company's officers has ever received any
charge, complaint, claim, demand, or notice alleging any such
interference, infringement, misappropriation, or violation, including
any claim that any of the Company and its subsidiaries must license or
refrain from using any Intellectual Property rights of any third party.
To the knowledge of any of the officers of the Company and its
subsidiaries, no third party has interfered with, infringed upon, or
misappropriated in any material respect any Intellectual Property
rights of any of the Company or its subsidiaries.
(c) To the knowledge of any of the officers of the
Company and its subsidiaries, none of the Company or its employees,
independent contractors or agents has engaged in any conduct or omitted
to perform any act, the result of which could
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invalidate or adversely affect the validity or enforceability of any of
the Intellectual Property.
(d) Schedule 2.17(d) identifies all United States and
foreign patents, trademarks, service marks, trade names and copyrights,
and all registrations and applications for registration thereof and all
licenses thereof, owned or held by the Company or any of its
subsidiaries on the Closing Date after giving effect to the Acquisition
Transaction, and identifies the jurisdictions in which such
registrations and applications have been filed. Each patent, trademark,
service xxxx, trade name, copyright and license listed on Schedule
2.17(d) is in full force and effect except to the extent the failure to
be in effect will not and could not reasonably be expected to have a
material adverse effect.
2.18 Environment, Health, and Safety. (a) The Company and its
subsidiaries are in compliance in all material respects with all Environmental
Laws (as defined below) and no civil, criminal or administrative action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand, or notice
is pending against any of them alleging any failure to so comply. Without
limiting the generality of the preceding sentence, each of the Company and its
subsidiaries has obtained and been in material compliance with all of the terms
and conditions of all material permits, licenses, and other authorizations that
are required under, and has complied, in all material respects, with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in the Environmental
Laws.
(b) No real property or facility now or previously owned, used,
operated, leased, managed or controlled by the Company or its subsidiaries or
any predecessor in interest is listed or proposed for listing on the National
Priorities List or the Comprehensive Environmental Response, Compensation, and
Liability Information System, both promulgated under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or on any comparable state or local list established pursuant to any
environmental law, and neither the Company nor any of its subsidiaries has
received any notification of potential or actual liability or request for
information under CERCLA or any comparable state or local Environmental Law.
(c) Except as disclosed in Section 2.18(c) of the Disclosure Schedule,
there have been no releases (i.e., any past or present releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing or dumping, on site or off site) of any Hazardous Materials
by the Company or its subsidiaries or any predecessor in interest at, on, under,
from or into any facility or real property owned, operated, leased, managed or
controlled by the Company other than releases which have not had a material
adverse effect on the assets, properties, financial condition, operating
results, or business of the Company.
(d) For the purpose of this Agreement, "Environmental Laws" means the
common
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law and all Federal, state, local and foreign laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder, now or hereafter in effect, relating to pollution or
protection or human health or the environment, including, without limitation,
laws relating to (i) emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
constituents, substances or wastes, including, without limitation, petroleum,
including crude oil or any fraction thereof, or any petroleum product or other
wastes, chemicals or substances regulated by any Environmental Law (collectively
referred to as "Hazardous Materials"), into the environment (including, without
limitation, ambient air, surface water, ground water, land surface or subsurface
strata), (ii) the manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport or handling of Hazardous Materials, and
(iii) underground storage tanks, and related piping, and emissions, discharges,
releases or threatened release of Hazardous Materials therefrom.
2.19 Product Liability. Neither the Company nor its
subsidiaries has any liability (and to the actual knowledge of the Company's
officers there is no factual basis for any action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against any of them giving
rise to any liability) arising out of any injury to individuals or property as a
result of the ownership, possession, or use of any product manufactured, sold,
leased, or delivered by any of the Company and its subsidiaries.
2.20 Conflicts of Interest. Except as disclosed in Section
2.20 of the Disclosure Schedule, no officer, director or shareholder of the
Company or its subsidiaries or any affiliate of any such person has any direct
or indirect interest (a) in any entity that does business with the Company or
its subsidiaries or (b) in any property, asset or right that is used by the
Company or any subsidiary in the conduct of business, or (c) in any contractual
relationship with the Company or any of its subsidiaries other than as an
employee.
2.21 Company Equipment. The Company's ice bagging equipment
manufactured by Lancer Corporation has received approval by the National
Sanitation Foundation. The ice making equipment manufactured by Hoshizaki
America, Inc. has received approval by the National Sanitation Foundation.
2.22 Disclosure. The Company has not knowingly withheld from
the Investors any material facts relating to the assets, business, operations,
financial condition or prospects of the Company or its subsidiaries. The
representations and warranties contained in this Agreement and all other
agreements being entered into in connection with this Agreement do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements and information contained herein not
misleading.
2.23 SEC Documents. The Company has provided to the Investors
its Registration Statement on Form S-4 (Registration No. 333-29357) (the
"Registration Statement"), which Registration Statement has been declared
effective by the U.S. Securities and Exchange Commission (the "COMMISSION"), its
Annual Report on Form 10-K for the year ended
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December 31, 1997 ("1997 FORM 10-K", and together with the Registration
Statement, the "SEC DOCUMENTS") and its Offering Circular dated April 23, 1998,
relating to the issuance of $100,000,000 9 3/4% Senior Notes due 2005 (the
"OFFERING CIRCULAR"). As of the date of filing as to the Registration Statement
and as of the date hereof as to the 1997 Form 10-K and the Offering Circular,
and as supplemented by the Disclosure Schedule, the SEC Documents and the
Offering Circular do not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The consolidated financial statements of the Company
included in the SEC Documents and the Offering Circular have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved (except as may be indicated in the notes
thereto) and fairly present the consolidated financial position of the Company
and its consolidated subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended (except in
the case of interim period financial information for normal year-end
adjustments). The Company has included in the SEC Documents all material
agreements, contracts and other documents that it reasonably believes are
required to be filed as exhibits to the SEC Documents. As of the date hereof,
and as supplemented by the Disclosure Schedule, to the Company's knowledge, the
Company and its subsidiaries have in all material respects substantially
performed all obligations required to be performed by them and are not in
default in any material respect under any of such agreements, contracts or other
documents to which any of them is a party or by which any of them is otherwise
bound. As of the date hereof, and as supplemented by the Disclosure Schedule, to
the Company's knowledge, all instruments referred to above are in effect and
enforceable according to their respective terms, and there is not under any of
such instruments any existing material default or event of default or event that
with notice or lapse of time or both, would constitute an event of default
thereunder. As of the date hereof, and as supplemented by the Disclosure
Schedule, to the Company's knowledge, all parties having material contractual
arrangements with the Company or any of its subsidiaries are in substantial
compliance therewith and none are in material default in any respect thereunder.
2.24 Labor Relations. There is no strike or other labor
dispute involving the Company or any of its subsidiaries pending or threatened
which could have a material adverse effect on the assets, properties, financial
condition, operating results, or business of the Company.
2.25 Margin Regulations; Use of Proceeds. No part of the
proceeds from the sale of the Securities hereunder will be used, directly or
indirectly, for the purpose of buying or carrying out any Amargin stock" within
the meaning of Regulation G of the Board of Governors of the Federal Reserve
System (12 CFR 207), or for the purpose of buying or carrying or trading in any
securities under such circumstances as to involve the Company in a violation of
Regulation X of said Board (12 CFR 24) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220). The assets of the Company
do not include any margin stock, and the Company does not have any present
intention of acquiring any margin stock.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
Each Investor severally represents and warrants to the
Company, as follows:
3.1 Authorization. This Agreement has been duly executed and
delivered by the Investor and constitutes the valid and binding agreement of the
Investor enforceable in accordance with its terms, and each other agreement
required to be entered into by the Investor pursuant to the terms and conditions
hereof, when executed and delivered by the Investor will constitute the valid
and binding agreement of the Investor enforceable in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors' right generally. The Investor has all
requisite power and authority to enter into this Agreement and to perform its
obligations hereunder.
3.2 Securities Not Registered. The Investor is acquiring the
Securities for investment purposes only, for its own account and not with a view
to, or for resale in connection with, any distribution thereof in violation of
applicable securities laws. The Investor has been advised that the Securities
being purchased and issued hereunder have not been registered under the
Securities Act or applicable state securities laws and that such shares must be
held indefinitely unless the offer and sale thereof are subsequently registered
under the Securities Act or an exemption from such registration is available.
The Investor acknowledges and agrees that the certificates evidencing the
Securities will bear a restrictive legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND THEY
MAY NOT BE OFFERED FOR SALE OR SOLD IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT THEREUNDER OR AN OPINION OF COUNSEL REASON ABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
and that such instruments will bear such restrictive or other legends as are
required by applicable state laws.
3.3 Access to Information. The Company has made available to
the Investor the opportunity to ask questions of and to receive answers from the
Company's officers, directors and other authorized representatives concerning
the Company and its business and prospects.
3.4 Investment Experience. The Investor (i) has such
knowledge, skill and experience in financial, business and investment matters
relating to an investment of this type, that it is capable of evaluating the
merits and risks of the purchase of the Securities, (ii) is a qualified
institutional buyer as defined in Rule 144A of the Securities Act or an
"accredited
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investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the Securities Act, and (iii) has the ability to
bear the risk of losing its entire investment in the Securities.
3.5 Finder's Fees. The Investor has incurred no liability for
commissions or other fees to any finder or broker in connection with the
transactions contemplated by this Agreement.
ARTICLE 4
COVENANTS OF THE COMPANY
The Company covenants and agrees that, unless a written waiver
from a majority in interest of the holders of the 13% Preferred Stock and 13%
Series B Preferred Stock, taken together, in accordance with the provisions of
Section 9.2 of this Agreement is first obtained, from and after the Closing
Date, and so long as any shares of the 13% Preferred Stock, any Notes (as
defined in the Exchange Offer Registration Rights Agreement) or any Exchange
Securities (as defined in the Exchange Offer Registration Rights Agreement) are
outstanding, the Company will fully comply with each of the covenants set forth
in Sections 4.1 through 4.12 of this Article 4:
4.1 Books of Account. The Company will, and will cause each of
its subsidiaries to, keep books of record and account in which full, true and
correct entries are made of all of its and their respective dealings, business
and affairs, in accordance with generally accepted accounting principles. The
Company will employ certified public accountants selected by the Board of
Directors who are "independent" within the meaning of the accounting regulations
of the Commission and who are one of the so-called "Big Six" accounting firms,
and have annual audits made by such independent public accountants in the course
of which such accountants shall make such examinations, in accordance with
generally accepted auditing standards, as will enable them to give such reports
or opinions with respect to the financial statements of the Company and its
subsidiaries as will satisfy the requirements of the Commission in effect at
such time with respect to certificates and opinions of accountants.
4.2 Furnishing of Financial Statements and Information. The
Company will deliver to the Investors:
(a) at the request of an Investor, as soon as
practicable but in any event within 30 days after such request is made,
unaudited consolidated balance sheets of the Company and its
subsidiaries as of the end of such month, together with the related
consolidated statements of operations and cash flow for such month,
setting forth the budgeted figures of such month prepared and submitted
in connection with the Company's annual plan as required under Section
4.3 hereof, all in reasonable detail in a form consistent with prior
periods and certified by an authorized accounting officer of the
Company, subject to year-end adjustments;
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(b) as soon as practicable, but in any event within
90 days after the end of each fiscal year, a consolidated balance sheet
of the Company and its subsidiaries, as of the end of such fiscal year,
together with the related consolidated statements of operations,
shareholders' equity and cash flow for such fiscal year, setting forth
in comparative form figures for the previous fiscal year, all in
reasonable detail and duly certified by the Company's independent
public accountants, which accountants shall have given the Company an
opinion, unqualified as to the scope of the audit, regarding such
statements;
(c) promptly after the submission thereof to the
Company, copies of all reports and recommendations submitted by
independent public accountants in connection with any annual or interim
audit of the accounts of the Company or any of its subsidiaries made by
such accountants;
(d) promptly after transmission thereof, copies of
all reports, proxy statements, registration statements and
notifications filed by it with the Commission pursuant to any act
administered by the Commission or furnished to shareholders of the
Company or to any national securities exchange;
(e) with reasonable promptness, such other financial
data relating to the business, affairs and financial condition of the
Company and any subsidiaries as is available to the Company and as from
time to time an Investor may reasonably request;
(f) promptly following the issuance of any additional
shares of Common Stock or any securities convertible into Common Stock,
or any options, warrants or other rights to purchase additional shares
of Common Stock or convertible securities, written notice of the amount
of securities so issued and the total consideration received therefor;
and
(g) within 10 days after the Company learns in
writing of the commencement or threatened commencement of any material
suit, legal or equitable, or of any material administrative,
arbitration or other proceeding against the Company, any of its
subsidiaries or their respective businesses, assets or properties,
written notice of the nature and extent of such suit or proceeding.
4.3 Preparation and Approval of Budgets. At least one month
prior to the beginning of each fiscal year of the Company, the Company shall
prepare and submit to the Board of Directors, for its review and approval, an
annual plan for such year; that shall include monthly capital and operating
expense budgets, cash flow statements and profit and loss projections itemized
in such detail as the Board of Directors may reasonably request. Each annual
plan shall be modified as often as necessary in the judgment of the Board of
Directors to
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reflect changes required as a result of operating results and the other events
that occur, or may be reasonably expected to occur, during the year covered by
the annual plan and copies of each such modification shall be submitted to the
Board of Directors. The Company will, simultaneously with the submission thereof
to the Board of Directors, deliver a copy of each such annual plan and
modification thereof to the Investors.
4.4 Inspection. At Investor's expense, the Company will permit
the Investors, or any designees thereof, to visit and inspect the properties of
the Company or any of its subsidiaries, including the financial books and
records thereof, and the right to take extracts therefrom, and discuss the
affairs, finances and accounts thereof with the appropriate officers, all at
reasonable times upon reasonable notice, and as often as reasonably may be
requested.
4.5 Voting Rights. (a) Upon the accumulation of accrued and
unpaid cash dividends on the outstanding 13% Preferred Stock after May 1, 2003,
in an amount equal to four full quarterly dividends (whether or not
consecutive), the number of members of the Board of Directors will be
immediately and automatically increased by one unless there is a vacancy on the
Board of Directors, and the holders of a majority of the outstanding shares of
13% Preferred Stock, voting as a separate class, will be entitled to elect one
member to the Board of Directors of the Company.
(b) Upon each accumulation of accrued and unpaid
cash dividends in an amount equal to two full quarterly dividends (whether or
not consecutive) that occurs after the accumulation of accrued and unpaid cash
dividends contemplated in subparagraph (a) hereof, the holders of a majority of
the outstanding shares of 13% Preferred Stock, voting as a separate class, will
be entitled to elect an additional member to the Board of Directors, and the
number of members of the Board of Directors will be immediately and
automatically increased as appropriate.
4.6 Directors' and Shareholders' Meetings. Pursuant to the
terms of the 13% Preferred Stock and Section 4.5 hereof, the Investors shall in
certain circumstances have the right to elect one or more directors of the
Company. In the event that the Investors have elected a director:
(a) The Company shall reimburse the Investors for the
reasonable out-of-pocket expenses incurred by them or directors elected
by them in connection with the attending of meetings by such directors
or carrying out any other duties by such director designees that may be
specified by the Board of Directors; shall pay such director designees
the same director's fees paid to the other non-employee directors of
the Company; shall maintain as part of its Articles of Incorporation or
bylaws a provision for the indemnification of its directors to the full
extent permitted by law, and enter into indemnity agreements reasonably
satisfactory to the Investors.
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(b) In addition, the Company shall notify the
Investors' board designees of all regular meetings and special meetings
of the Board of Directors of the Company at least two business days in
advance of such meetings.
(c) The Company agrees, as a general practice, to
hold a meeting of its Board of Directors at least once every three
months, and during each year to hold its annual meeting of shareholders
within 30 days of delivery of the audited financial statements.
4.7 Use of Proceeds. The Company will use the proceeds of the
investment made by the Investors to complete the acquisition of Reddy Ice
Corporation, a wholly owned subsidiary of Suiza Foods Corporation (the
"Target"), and to pay the costs and expenses related to such acquisition.
4.8 Change of Control, Etc. Upon any event, including but not
limited to the occurrence of a Change of Control or Asset Sale (each as defined
in Section 1.01 of the Indenture (as defined in the Certificate of Resolution)),
requiring the making of an offer to repurchase the 9 3/4% Senior Notes due 2005
of the Company (the "SENIOR NOTES"), then the provisions governing such event,
including but not limited to the Change in Control Offer (set forth in Section
4.16 of the Indenture) and the Asset Proceeds Offer (set forth in Section 4.17
of the Indenture), shall apply to the 13% Preferred Stock and the Company shall
make an offer to repurchase the outstanding shares of 13% Preferred Stock at an
offer price equal to 101% of the aggregate liquidation preference thereof plus
accrued and unpaid dividends thereon to the date of purchase, and within the
time periods and on the other terms and conditions provided for in the Indenture
and such an event shall constitute an Increased Dividend Triggering Event
notwithstanding the provisos set forth in the next two sentences. Provided, that
all of the Company's repurchase obligations under the Indenture and the New
Credit Facility (as defined in the Certificate of Resolution) must be satisfied
prior to the Company making such an offer to repurchase. Provided, further, in
the event of an Asset Sale, the Company's repurchase obligations hereunder will
be subject to all restrictions contained in the Indenture and the New Credit
Facility, and amounts used for such repurchase obligations will be limited to
the Net Cash Proceeds (as defined in Section 1.01 of the Indenture) remaining
after satisfying all repurchase obligations under the Indenture and the New
Credit Facility. In the event of any amendment, modification, supplement or
termination of the Indenture, notwithstanding such amendment, modification,
supplement or termination, this Section 4.8 shall continue to apply as an
obligation of the Company as if the Indenture had not been amended, modified,
supplemented or terminated.
4.9 Other Restrictions. Except as contemplated by the
Certificate of Resolution or as disclosed in Section 4.9 of the Disclosure
Schedule, without the prior approval of the Board of Directors of the Company by
an affirmative vote of at least two-thirds of its members, neither the Company
nor its subsidiaries will do any of the following:
(a) declare or pay any dividend or make any other
distribution on any
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shares of its capital stock other than those payable solely in shares
of Common Stock and other than those payable on the 10% Preferred Stock
(which may only be payable in cash if all dividends payable on the 13%
Preferred Stock have been paid in cash) and 13% Preferred Stock as
provided in Section 4.11 hereof, or purchase, redeem or otherwise
acquire for any consideration, or set aside a sinking fund or other
fund for the redemption or repurchase of any shares of capital stock or
any warrants, rights or options to purchase shares of capital stock
(except that any subsidiary may pay dividends to the Company);
(b) grant to the holders of any securities issued or
to be issued by the Company a "demand" right to register such
securities under the Securities Act;
(c) guarantee, endorse or otherwise be or become
contingently liable, or permit any subsidiary to guarantee, endorse or
otherwise become contingently liable, in connection with obligations in
excess of one million dollars ($1,000,000) in the aggregate, securities
or dividends of any person, firm, association or corporation (other
than the Company and any 100% owned subsidiary), except that the
Company and any subsidiary may endorse negotiable instruments for
collection in the ordinary course of business;
(d) make or permit any subsidiary to make loans or
advances to any person (including without limitation to any officer,
director or shareholder of the Company or any officer or director of
any subsidiary), firm, association or corporation (other than the
Company and any 100% owned subsidiary), except advances to suppliers,
customers and employees made in the ordinary course of business;
(e) make any material change in the nature of its
business as carried on at the date of this Agreement;
(f) organize any subsidiary, joint venture,
partnership, or acquire a business (by asset purchase, stock purchase,
merger or otherwise), or acquire any assets or make any investment (all
of the foregoing being hereinafter referred to as an "Investment"),
except that:
(i) in the case of an Investment that is in
the same line of business as the Company (i.e., the
distribution of packaged ice systems and the sale of bags for
use in such systems or the traditional methods of
manufacturing and distributing ice) or to be used in or in
connection with the Company's business as currently conducted,
the Company and its subsidiaries may make such Investment to
the extent that the total expenditure for such Investment does
not exceed $500,000; and
(ii) in the case of any other Investment,
the Company and its subsidiaries may make such Investment only
to the extent permitted by the
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Indenture, as such agreements are in effect on the date
hereof, without giving effect to any amendment, modification,
or supplement thereto after the date hereof;
(g) mortgage, pledge, or create a security interest
in all or substantially all of the Company's assets as collateral;
(h) become a party to a merger, consolidation or
reorganization with any other Person as a result of which at least 51%
of the voting power of the Company will not be held, directly or
indirectly, by persons or entities who held at least 51% of the voting
power before such merger, consolidation or reorganization, or sell or
otherwise dispose of, or enter into any agreement to sell or otherwise
dispose of, all or substantially all of the assets of the Company to
any other Person. For purposes hereof, "Person" shall mean any
individual, corporation, partnership, venture or proprietorship or
other enterprise or entity; and
(i) sell, lease, transfer or otherwise dispose of any
of its properties or assets to, or purchase any property or asset from,
or enter into any transaction, contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit of, any Affiliate
(each of the foregoing, an "AFFILIATE TRANSACTION"), unless such
Affiliate Transaction is made on terms that are no less favorable to
the Company or the relevant subsidiary than those that would have been
obtained in a comparable transaction by the Company or such subsidiary
with an unrelated person. An "AFFILIATE" of the Company or its
subsidiaries shall mean any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the
Company or its subsidiaries.
4.10 Compliance with the Indenture. The Company will comply
with all of the covenants contained in the Indenture, in each case as in effect
on the date hereof and without giving effect to any waiver, consent, approval,
amendment, modification, supplement or termination thereof.
4.11 Additional Preferred Stock Issuances. Except as set forth
in the Certificate of Resolution, the Company shall not issue preferred stock
that ranks senior to or on a parity with the 13% Preferred Stock as to dividend
distributions or distributions upon the liquidation, winding-up or dissolution
of the Company, or that matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the redemption of all of the
13% Preferred Stock.
4.12 No Reissuance or Further Issuance of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and 10% Preferred
Stock. The Company shall not reissue shares of its Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock or 10% Preferred Stock
acquired or redeemed by the Company or issue any authorized shares of the Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or 10%
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Preferred Stock that have not been issued as of the date hereof; provided, that
the Company may issue shares of such preferred stock as necessary to pay
dividends in kind on such preferred stock issued and outstanding on the date
hereof in accordance with the terms of the respective certificates of resolution
providing for the issuance of such preferred stock.
4.13 Remedies. If an Event of Default (as defined below)
occurs, the Investors shall have the rights, in addition to and not in
abrogation of all other legal rights and remedies available to the Investors
including but not limited to rights granted under Article 7 of this Agreement,
to either (as the Investors may elect) (i) exercise the rights set forth in
Section 4.5 hereof and (ii) unless prohibited by other agreements relating to
the issuance or incurrence of debt existing as of the date hereof, to require
the Company to repurchase all outstanding shares of the 13% Preferred Stock (or
Exchange Notes, if issued) at a repurchase price equal to the aggregate
liquidation preference (or principal amount, as the case may be) thereof plus
accrued and unpaid dividends (or interest, as the case may be) thereon to the
repurchase date. For purposes hereof, an "Event of Default" shall have occurred
if (a) any of the events that constitute an Event of Default as defined in the
Indenture as in effect on the date hereof (without giving effect to any
amendment, modification, supplement or termination thereof) shall have occurred,
(b) if the Company fails to perform or observe any of the covenants set forth in
Sections 4.1 through 4.12 hereof (which failure does not otherwise constitute an
Event of Default under the foregoing clause (a)), which failure continues for a
period of 30 days after the Company receives written notice from the Investors
specifying the failure, or (c) the Company fails to perform all the provisions
set forth in the Certificate of Resolution and such failure continues for a
period of 30 days after the Company receives written notice from the Investors
specifying the failure.
ARTICLE 5
CONDITIONS TO THE OBLIGATIONS OF THE INVESTORS
The obligation of the Investors to purchase and pay for the
Securities to be delivered to them hereunder at Closing is subject to the
fulfillment by the Company, at or before Closing, or the existence or
nonexistence at or before Closing, as the case may be, of the following
conditions:
5.1 Compliance with Representations and Warranties. The
representations and warranties contained in Article 2 hereof shall be true in
all material respects on and as of the Closing Date with the same effect as
though made on and as of such date, and the Company shall have performed and
complied with all agreements and conditions contained herein required to be
performed or complied with by the Company prior to or at the Closing.
5.2 Compliance Certificate. At the Closing, the Company shall
have delivered to the Investors a certificate dated as of the Closing Date,
signed by the Company's President, certifying that the conditions in this
Article 5 required to be fulfilled prior to such Closing have been fulfilled.
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5.3 Stock Certificates. At the Closing, the Company shall have
delivered to the Investors stock certificates evidencing 400,000 shares of 13%
Preferred Stock.
5.4 Registration Rights Agreements. On the Closing Date, the
Company shall have executed and delivered the Registration Rights Agreements in
the forms of Exhibits B and C attached hereto.
5.5 Warrants. At the Closing, the Company shall have executed
and delivered the Warrants to purchase Common Stock in the form of Exhibit A
attached hereto.
5.6 Opinion of Counsel. On the Closing Date, the Company shall
have delivered to the Investors the opinion of Akin, Gump, Strauss, Xxxxx &
Xxxx, L.L.P. dated the Closing Date, substantially in the form of Exhibit E
attached hereto.
5.7 Waivers of Rights of First Refusal. On or before the
Closing Date, the rights of first refusal to purchase all or any part of any
issue of specified securities, which right could include the Securities, granted
by the Company to each of the shareholders set forth in Exhibit F attached
hereto, (the "CONSENTING SHAREHOLDERS"), pursuant to Article 8 of each of
certain stock purchase agreements between the Company and the Consenting
Shareholders shall have been waived by the Consenting Shareholders in accordance
with the waiver provisions set forth in the agreements granting such rights of
first refusal.
5.8 Series A Preferred Stock, Series B Preferred Stock, Series
C Stock and 10% Preferred Consents. On or before the Closing Date, the holders
of the outstanding shares of the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock and the 10% Preferred Stock set
forth on Exhibit F attached hereto, each voting as a separate class, by
unanimous written consent or the affirmative vote given in writing or by vote at
a meeting, shall have approved the issuance of the 13% Preferred Stock and all
of its terms.
5.9 Target Acquisition Agreement. The Company, the Target,
Suiza Foods Corporation and any other appropriate parties shall have executed a
definitive acquisition agreement (the "ACQUISITION AGREEMENT") and other related
documentation relating to the acquisition of Target by the Company (the "TARGET
ACQUISITION") substantially in the form of the March 26, 1997 draft thereof
provided to Investors, and the Company shall not have waived, or materially
modified or amended any of the conditions contained in Section 9.1 of the
Acquisition Agreement.
5.10 Consummation of Target Acquisition. The consummation of
the Target Acquisition shall occur concurrently with the Closing.
5.11 Senior Notes. The Company shall have issued, or shall
issue concurrently with the Closing, in addition to the $145,000,000 aggregate
principal amount of Senior Notes issued under the Indenture on January 22, 1998,
not less than $100 million of Senior Notes under the Indenture.
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5.12 Credit Facilities. The Company shall have entered into
the New Credit Facility with Antares Leveraged Capital Corp. in a form
reasonably satisfactory to Investor.
5.14 No Default. No Event of Default shall have occurred or be
continuing under the Indenture, and no default shall have occurred or be
continuing under any material agreement of the Company of the Company or its
subsidiaries to the extent that such default would be expected to have a
materially adverse effect on the Company or its subsidiaries.
5.15 Parallel Exit Agreement. On the Closing Date, Xxxxx X.
Xxxxxx, X.X. Xxxxx III, and the Investors shall have entered into the Parallel
Exit Agreement in the form attached hereto as Exhibit G.
ARTICLE 6
CONDITIONS TO THE COMPANY'S OBLIGATIONS
The obligation of the Company to issue and sell the Securities
to the Investor hereunder at the Closing is subject to the fulfillment by the
Investors, at or before the Closing, of the following conditions:
6.1 Compliance with Representations and Warranties. The
representations and warranties of the Investors contained in Article 3 hereof
shall be true on and as of the Closing Date with the same effect as though made
on that date.
6.2 Performance. The Investors shall have delivered the
Purchase Price to the Company, and shall have performed and complied with all of
its covenants hereunder through the Closing Date.
ARTICLE 7
INDEMNIFICATION
The Company shall, regardless of the validity of the claim
asserted, indemnify, defend and hold harmless each Investor and its respective
Affiliates, employees, officers, directors, trustees, agents, attorneys,
consultants and any other person or entity acting for or at the direction of the
Investor (each an "INVESTOR INDEMNIFIED PARTY"), to the fullest extent lawful,
from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of preparation and reasonable
attorneys' fees) and expenses, including expenses of any investigation, lawsuit
or legal or administrative action or proceeding (collectively "LOSSES") incurred
by any Investor Indemnified Party, arising out of or in connection with any
allegation or allegations which, if proven, could constitute a breach of any
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representation, warranty, covenant or agreement of the Company in this Agreement
or in any other agreement entered into pursuant to the terms and conditions of
this Agreement. The Company agrees promptly to reimburse any Investor
Indemnified Party for all such Losses as they are reasonably incurred and
disclosed to the Company in writing by such Investor Indemnified Party within
ten (10) days of receipt of written notice. The obligations of the Company to
each Investor Indemnified Party hereunder shall be separate obligations, and the
liability of the Company to any other Investor Indemnified Party hereunder shall
not be extinguished solely because any other Investor Indemnified Party is not
entitled to indemnity hereunder.
Each Investor shall, regardless of the validity of the claim
asserted, indemnify, defend and hold harmless the Company and its Affiliates,
employees, officers, directors, trustees, agents, attorneys, consultants and any
other person or entity acting for or at the direction of the Company (each a
"COMPANY INDEMNIFIED PARTY"), to the fullest extent lawful, from and against any
and all Losses incurred by any Company Indemnified Party, arising out of or in
connection with any allegation or allegations which, if proven, could constitute
a breach of any representation, warranty, covenant or agreement of such Investor
in this Agreement or in any other agreement entered into pursuant to the terms
and conditions of this Agreement. The indemnifying Investor agrees promptly to
reimburse any Company Indemnified Party for all such Losses as they are
reasonably incurred and disclosed to the Company in writing by such Company
Indemnified Party within ten (10) days of receipt of written notice. The
obligations of the indemnifying Investor to each Company Indemnified Party
hereunder shall be separate obligations, and the liability of the indemnifying
Investor to any other Company Indemnified Party hereunder shall not be
extinguished solely because any other Investor Indemnified Party is not entitled
to indemnity hereunder.
If any proceeding shall be brought or asserted against any
Investor Indemnified Party or Company Indemnified Party (hereinafter sometimes
each referred to as an "INDEMNIFIED PARTY") in respect of which indemnity may be
sought from an Investor or the Company (hereafter sometimes referred to as an
"INDEMNIFYING PARTY") hereunder, such Indemnified Party promptly shall notify
the Indemnifying Party in writing, and the Indemnifying Party shall assume the
defense thereof, including the employment of counsel satisfactory to the
Indemnified Party and the payment of all reasonable fees and expenses incurred
in connection with the defense thereof; provided, however, that the failure of
the Indemnified Party to give such notice shall not relieve the Indemnifying
Party of its obligations pursuant to this Agreement except to the extent that
such failure shall have materially and adversely prejudiced the Indemnifying
Party.
Any such Indemnified Party shall have the right to employ
separate counsel in any such action, claim or proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party
has agreed to pay such fees and expenses; or (2) the Indemnifying Party shall
have failed (within a reasonable period of time) to employ counsel reasonably
satisfactory to such Indemnified Party in any such action, claim or proceeding;
or (3) the named parties to
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any such action, claim or proceeding (including any impleaded parties other than
parties impleaded by an Indemnified Party for the principal purpose of creating
a conflict of interest) include both such Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall have been advised in writing by its
counsel that a conflict of interest would exist if counsel employed by the
Indemnifying Party represents such Indemnified Party and the Indemnifying Party
(and in the case of (1), (2) or (3), if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party), it being understood, however, that the Indemnifying
Party shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all such Indemnified Parties,
which firm shall be designated in writing by such Indemnified Parties. The
Indemnifying Party shall have the right to employ separate counsel in, and to
participate in the defense of, any action or proceeding with respect to which
they have no right to assume the defense, but the fees and expenses of such
counsel shall be at the expense of the Indemnifying Party. No Indemnified Party
will be subject to any liability for any settlement made without its consent.
The Indemnifying Party shall not consent to entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such action, claim or proceeding. All fees and expenses of the
Indemnified Party (including reasonable attorneys' fees and expenses to the
extent incurred in connection with investigating or preparing to defend such
action or proceeding) shall be paid to the Indemnified Party, as incurred, upon
written notice thereof to the Indemnifying Party (regardless of whether it is
ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder).
If the indemnification provided for herein is unavailable to
any Indemnified Party in respect of any Losses, then the Indemnifying Party, in
lieu of indemnifying the Indemnified Party, shall contribute to the amount paid
or payable by the Indemnified Party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party, on the one hand, and the Indemnified Party, on the other, in connection
with the actions, statements or omissions which resulted in such Losses, as well
as any other relevant equitable considerations. The relative fault of the
Indemnifying Party, on the one hand, and the Indemnified Party, on the other,
shall be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, has been taken by, or
relates to information supplied by, either the Indemnifying Party or the
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent any such action, statement or
omission. The amount paid or payable by a party as a result of any Losses shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
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The parties hereto agree that it would not be just and
equitable if contribution pursuant to this section were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The obligations of the Indemnifying Party hereunder shall
survive the payment or prepayment of the 13% Preferred Stock, at maturity, upon
redemption or otherwise, any transfer of the Securities by Investor, and any
termination of this Agreement.
ARTICLE 8
RIGHT TO PURCHASE ADDITIONAL SECURITIES
8.1 First Refusal Rights. Subject to the terms and conditions
of this Article 8, the Company hereby grants to each Investor (referred to
hereinafter in this Article collectively as the "OFFEREES") a right of first
refusal to purchase its Pro Rata Share (as defined below) of any issue of New
Securities (as defined below) that the Company (or any subsidiary whose capital
stock will not be wholly owned, directly or indirectly, by the Company upon
completion of any such issuance) may from time to time after the Closing propose
to issue.
8.2 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, Series B Preferred Stock or
Series C Preferred Stock of the Company; and (iv) shares of the Company's
capital stock issued in connection with any existing warrant, option or right
listed on the Disclosure Schedule, stock split or stock dividend by the Company.
8.3 Notice and Allocation Periods. For purposes of this
Section 8.3, each Investor shall be deemed to own the number of shares of Common
Stock theretofore issued upon exercise of its respective Warrants plus the
number of shares of Common Stock then underlying such Warrants. If the Company
or, when applicable, its subsidiary, proposes to undertake a bona fide issuance
of New Securities, then it shall give the Offerees written notice of its
intention, describing the type of New Securities, the price, the number of
shares to be offered, and the general terms upon which such securities are
proposed to be offered. Offerees shall be given at least 20 days' prior written
notice within which to agree to purchase all or any part of its Pro Rata
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Share (as hereinafter defined) of such issuance of New Securities for the price
and upon the general terms specified in said notice by giving written notice to
the issuer within such period and stating therein the quantity of New Securities
to be purchased by it. "PRO RATA SHARE" shall mean, with respect to each
Offeree, that portion of the number of shares of New Securities proposed to be
issued that equals the proportion that (a) the number of shares of Common Stock
held by the Offeree immediately prior to the proposed issuance, plus the number
of shares of Common Stock that would then be issuable to the Offeree assuming
that all securities of the Company convertible into or exchangeable for Common
Stock held by the Offeree had been converted or exchanged, bears to (b) the
total number of shares of Common Stock issued and outstanding immediately prior
to the proposed issuance, assuming that all securities of the Company
convertible into or exchangeable for Common Stock had been converted or
exchanged.
8.4 Right of Company to Sell New Securities. If the Offerees
fail to exercise in full their rights of first refusal within the applicable
period set forth above, then the Company or, when applicable, its subsidiary
shall have 120 days thereafter to sell the New Securities respecting that the
rights set forth herein were not exercised at a price and upon general terms no
more favorable to the purchaser thereof than specified in the notice to the
Offerees. If such New Securities have not been sold within such 120-day period,
then the Company or, when applicable, its subsidiary shall not thereafter issue
or sell any New Securities without first offering them to the Offerees in the
manner provided above.
8.5 Public Offering. Reference to the term "PUBLIC OFFERING"
in this Agreement shall mean a bona fide firm commitment underwritten public
offering of shares of the Company's Common Stock made through a nationally
recognized underwriting firm pursuant to an effective registration statement
under the Securities Act, which results in gross proceeds to the Company of not
less than $20,000,000.
8.6 Termination. This Article 8 shall continue in effect from
the date of this Agreement until the Company has completed a Public Offering.
ARTICLE 9
MISCELLANEOUS
9.1 Notices. All notices, requests, demands and other
communications hereunder, and each other agreement to be entered into pursuant
to the terms and conditions of this Agreement, shall be in writing and shall be
delivered by hand, overnight courier, facsimile transmission, or by United
States Mail, and shall be deemed to have been duly given when actually received,
or when mailed, first class postage prepaid, certified mail, return receipt
requested, to the addresses set forth below, or to such other address as may be
designated hereafter by prior written notice from the recipient to the sender:
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If to the Company: Packaged Ice, Inc.
Attention: Chief Executive Officer
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
With a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
Attention: Xxxx Xxxxxxxxxx
0000 XxxxxxxXxxx Xxxxx
000 Xxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
If to the Investors: Ares Management, L.P.
Attn: Xxxxx Xxxxx
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx, Xxxxx & Bockius LLP
Attn: Xxxxx X. Xxxxxxx, Esq.
000 X. Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
AND
S.V. Capital Partners, L.P.
Attn: Xxx Xxxxx
0000 Xxxxxxxx
Xxx Xxxxxxx, XX 00000
With a copy to: Fulbright & Xxxxxxxx LLP
Attn: Xxxxx X. Xxxxxxxx, Xx.
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
9.2 Modification and Waiver.
(a) No amendment, modification or waiver to this
Agreement shall be made without the written approval of the Company and
Investors owning more than an
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aggregate of 50% of the issued and outstanding 13% Preferred Stock and
13% Series B Preferred Stock. Notwithstanding the foregoing, any
amendment to this Agreement that (i) creates any additional affirmative
obligations to be complied with by any or all of the holders of 13%
Preferred Stock or 13% Series B Preferred Stock, (ii) grants to any one
or more holders of 13% Preferred Stock or 13% Series B Preferred Stock
any rights more favorable than any rights granted to all other
similarly situated holders of 13% Preferred Stock or 13% Preferred
Stock, or (iii) otherwise treats any one or more holders of 13%
Preferred Stock or 13% Preferred Stock differently than all other
similarly situated holders of 13% Preferred Stock or 13% Preferred
Stock, must be approved by each Investor so as to be effective against
such Investor.
(b) Approval, waiver and consent by the Investors
hereunder shall be in writing and shall be delivered to the Company in
the manner provided for in Section 9.1 herein.
9.3 Conflicts. If there shall be any conflict between any
provision of this Agreement and any provision of the other agreements required
to be entered into pursuant to the terms and conditions of this Agreement, the
conflicting provision of such other agreements shall control.
9.4 Gender. Whenever herein, and in each other agreement
required to be entered into pursuant to the terms and conditions of this
Agreement, the singular number is used, the same shall include the plural, and
the masculine gender shall include the feminine and neuter genders, and vice
versa, as the context may require.
9.5 Headings. The headings contained in this Agreement, and in
each other agreement required to be entered into pursuant to the terms and
conditions of this Agreement, are for reference purposes only and shall not in
any way affect their meaning or interpretation.
9.6 Counterparts. This Agreement, and each other agreement
required to be entered into pursuant to the terms and conditions of 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.
9.7 Parties in Interest. This Agreement, and each other
agreement required to be entered into pursuant to the terms and conditions of
this Agreement, shall, except as may otherwise be specifically provided to the
contrary therein, inure to the benefit of and be binding upon each of the
parties hereto and thereto, as the case may be, and their respective heirs,
executors, legal representatives, successors and assigns.
9.8 Survival. All covenants, agreements, representations and
warranties made herein, and in each other agreement required to be entered into
pursuant to the terms and conditions of this Agreement, or otherwise in writing
in connection therewith, shall survive the execution and delivery thereof and
the consummation of the transactions contemplated thereby.
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9.9 Entire Agreement. This Agreement, and each other agreement
required to be entered into pursuant to the terms and conditions of this
Agreement, embody the entire agreement and understanding between the parties
thereto, and supersede all prior agreements and understandings, written and
oral, relating to the subject matter thereof, including, without limitation, all
letter of intent and summary term sheets heretofore executed or examined by the
parties.
9.10 Governing Law. THIS AGREEMENT AND EACH OTHER AGREEMENT
REQUIRED TO BE ENTERED INTO PURSUANT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, SHALL, EXCEPT AS MAY OTHERWISE BE SPECIFICALLY PROVIDED TO THE
CONTRARY THEREIN, BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
9.11 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, including, without limitation
any claim for violation of securities laws, shall be settled by binding
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, in Los Angeles, California and judgment upon the award
reentered by the arbitrator may be entered in any court having jurisdiction
thereof, and shall not be appealable.
9.12 Expenses and Attorneys' Fees. The Company shall pay the
expenses, including without limitation attorneys' fees, that are incurred by
Investors with respect to the negotiation, execution, closing, delivery and
performance of this Agreement, and each other agreement required to be entered
into pursuant to the terms and conditions of this Agreement.
9.13 Language. The language used in this Agreement, and the
other agreements required to be entered into pursuant to the terms and
conditions of this Agreement, shall be deemed to be language chosen by the
parties thereto to express their mutual intent, and no rule of strict
construction against any party shall apply to any term or condition thereof.
9.14 Severability. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision hereof and this Agreement
shall be construed as if such invalid, illegal, or unenforceable provision had
never been contained herein.
9.15 Waiver. No waiver by any party of the performance of any
provision, condition or requirement herein shall be deemed to be a waiver of, or
in any manner release the other party from, performance of any other provision,
condition or requirement herein; nor deemed to be a waiver of, or in any manner
release the other party from future performance of the same provision, condition
or requirement; nor shall any delay or omission by any party to exercise any
right hereunder in any manner impair the exercise of any such right accruing to
it thereafter.
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9.16 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties and shall inure to the benefit of the
holders of the 13% Preferred Stock and any successor holders of shares of 13%
Preferred Stock as if such shares had been issued pursuant to this Agreement,
including without limitation the provisions of Article 4 hereof. Nothing
contained in this Agreement shall be construed to give any person other than the
Company and the Investors, their successors and assigns, any legal or equitable
right, remedy or claim under or with respect to this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
THE COMPANY:
PACKAGED ICE, INC.
By:
------------------------------
Name:
Title:
(INVESTOR SIGNATURE PAGES FOLLOW)
32
INVESTOR:
ARES LEVERAGED INVESTMENT FUND, L.P.
By: ARES MANAGEMENT, L.P.,
its General Partner
By:
-------------------------------
Name:
Title:
33
INVESTOR:
S.V. CAPITAL PARTNERS, L.P.
By: S.V. Capital Management, Inc.
its General Partner
By:
---------------------------------
Name:
Title:
34
EXHIBIT A Warrants
EXHIBIT B Registration Rights Agreement
EXHIBIT C Registration Rights Agreement
EXHIBIT D Certificate of Resolution
EXHIBIT E Opinion of Akin, Gump
EXHIBIT F Consenting Shareholders (attached)
EXHIBIT G Parallel Exit Agreement
35
EXHIBIT E
===================================================================================================
CONSENTING SHAREHOLDERS' SHAREHOLDING
NAMES AND ADDRESSES
---------------------------------------------------------------------------------------------------
Norwest Equity Partners V, 378,000 shares of Common Stock
a Minnesota Limited Partnership 405,000 shares of Series A Preferred Stock
2800 Xxxxx Xxxxxxx Tower 37,449 shares of Series B Preferred Stock
000 Xxxxx Xxxxx Xx.
Xxxxxxxxxxx, XX 00000-0000
---------------------------------------------------------------------------------------------------
Food Fund II Limited Partnership 42,000 shares of Common Stock
0000 Xxxxxxx Xxxxx, Xxxxx 000 45,000 shares of Series A Preferred Stock
Xxxxxxxxxx, XX 00000 4,161 shares of Series B Preferred Stock
---------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxxx 355,202 shares of Common Stock
c/o Nutricept, Inc. 83,221 shares of Series B Preferred Stock
00000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
---------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxxx, Xxxx Xxxx, Xxxxxx 50,000 shares of Common Stock
Xxxxxxx, Xxxxxxx X. Xxxxxxxxx,
Xxxxxxxx X. Xxxxxxxxx Trustees
UID 12/18/80 FBO Xxxxxxx X.
Xxxxxxxxx
1301 Avenue of the Americas
Xxxxx 0000
Xxx Xxxx, XX 00000
---------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxxx, Xxxx Xxxx, Xxxxxx 50,000 shares of Common Stock
Xxxxxxx, Xxxxxxx X. Xxxxxxxxx,
Xxxxxxxx X. Xxxxxxxxx Trustees
UID 12/18/80 FBO Grandchildren
1301 Avenue of the Americas
Xxxxx 0000
Xxx Xxxx, XX 00000
---------------------------------------------------------------------------------------------------
J. Xxxx Xxxxxxxx 10,000 shares of Common Stock
ABS Plaza
00000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
---------------------------------------------------------------------------------------------------
Lancer Corporation 63,705 shares of Common Stock
000 X. Xxxxx
Xxx Xxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------
36
====================================================================================
CONSENTING SHAREHOLDERS' SHAREHOLDING
NAMES AND ADDRESSES
------------------------------------------------------------------------------------
Southwest Texas Equipment
Distributors, Inc.
Attention: Xxxx Xxxxx III, President
1120 E. Durango 25,000 shares of Common Stock
Xxx Xxxxxxx, XX 00000
------------------------------------------------------------------------------------
Xxxx Xxxxxx 5,000 shares of Common Stock
Heftel Broadcasting Corp.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------
Xxxxxxxxx Xxxxxxxxxx Xxxxxxx 5,000 shares of Common Stock
Grupo Commercial Santa Fe
Diego de Almagro # 105 Pte.
Col. Mirasierra
San Xxxxx Xxxxx Xxxxxx,
N.L. C.P. 66240
====================================================================================
37
Schedule I
SCHEDULE OF INVESTORS
-------------------------------------------------------------------------------
Number of Shares of Percentage of
13% Preferred Stock Warrants to be
Investor to be Purchased Purchased
-------------------------------------------------------------------------------
Ares Leveraged Investment Fund, L.P. 325,000 81.25%
-------------------------------------------------------------------------------
S.V. Capital Partners, L.P. 75,000 18.75%
-------------------------------------------------------------------------------
38
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
THE COMPANY:
PACKAGE ICE, INC.
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: C.E.O.
(INVESTOR SIGNATURE PAGES FOLLOW)
[Securities Purchase Agreement]
39
INVESTOR:
ARES LEVERAGED INVESTMENT FUND, L.P.
By: ARES MANAGEMENT, L.P.,
its General Partner
By: /s/ XXXXX X. XXXXX
-------------------------------
Name:
Title:
[Securities Purchase Agreement]
40
INVESTOR:
S.V. CAPITAL PARTNERS, L.P.
By: S.V. Capital Management, Inc.
its General Partner
By: /s/ X.X. XXXXX
---------------------------------
Name: X.X. Xxxxx
Title: Managing Director
[Securities Purchase Agreement]
41
APPENDIX A
ALLOCATION SCHEDULE
The Purchase Price is allocated between the Preferred Stock and the
Warrants as follows:
400,000 shares of 13% Preferred Stock $35,121,240
Warrants to purchase 975,752 Stock Units $ 4,878,760
