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EXHIBIT 10.15
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
AND
CONSENT AND WAIVER OF RIGHT
TO PURCHASE ADDITIONAL SECURITIES
This Amendment, Consent and Waiver ("Amendment, Consent and Waiver") is
dated as of January 10, 1997 by and among Packaged Ice, Inc., a Texas
corporation (the "Corporation"), and the persons whose signatures are set forth
on the signature page hereof (the "Consenting Shareholders").
W I T N E S S E T H
WHEREAS, the persons listed on Exhibit A attached hereto (the
"Investors") purchased shares of the Corporation's $.01 par value common stock,
(the "Common Stock") pursuant to a Stock Purchase Agreement dated as of
September 20, 1995 (the "Stock Purchase Agreement"), which Stock Purchase
Agreement is incorporated herein by reference; and
WHEREAS, defined terms used herein shall have the meaning given to such
terms in the Stock Purchase Agreement unless otherwise defined herein; and
WHEREAS, Article 8 of the Stock Purchase Agreement grants the Investors
the right of first refusal to purchase additional securities; and
WHEREAS, on December 11, 1996 the Corporation issued promissory notes,
bearing interest at a rate of 10% compounded monthly, convertible into Series B
Convertible Preferred Stock of the Corporation to Norwest Equity Partners V, a
Minnesota Limited Partnership, The Food Fund II Limited Partnership and Xxxxxx
X. Xxxxxxxxx in the aggregate amount of $750,000 (the "Notes"); and
WHEREAS, the Corporation is desirous of issuing on or before May 31,
1997 at a price of not less than $6.07 per share an aggregate of up to 200,000
shares of Series B Convertible Preferred Stock with the powers, rights and
preferences as are set forth in the Certificate of Resolution attached hereto
as Exhibit B and incorporated herein by reference ("Series B Preferred Stock")
to Norwest Equity Partners V, a Minnesota Limited Partnership, The Food Fund II
Limited Partnership, and Xxxxxx X. Xxxxxxxxx, in exchange for cancellation of
the Notes and forgiveness of accrued interest thereon and to other purchasers
for cash (such issuance of the Notes, the shares of Series B Preferred Stock,
and the subsequent issuance of shares of the Corporation's $.01 par value
common stock upon conversion of the Series B Preferred Stock, shall hereinafter
be referred to as the "Issuances"); and
WHEREAS, the Consenting Shareholders are desirous of consenting to each
Issuance and waiving their rights to purchase their Pro Rata Share of each
Issuance.
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereto and of the mutual benefits to be gained by the performance thereof, the
parties hereto hereby agree as
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follows:
1. Each of the undersigned Consenting Shareholders hereby waives his
or her right to purchase his or her Pro Rata Share of each Issuance.
2. Other than with respect to the Issuances, the parties agree that
this Amendment, Consent and Waiver shall not be construed to be a consent
and/or waiver of Article 8 of the Stock Purchase Agreement for any sale and
purchase of any other New Securities.
3. The Stock Purchase Agreement is hereby amended by amending and
restating Section 8.2 thereof as follows:
"8.2 Definition of New Securities. "New Securities" shall mean
any capital stock, any rights, options or warrants to purchase or
subscribe for capital stock, and any securities or other instruments of
any type whatsoever that are, or may become, convertible into or
exchangeable for capital stock; provided, however, that "New Securities"
shall not include (i) securities offered and sold by the Company
pursuant to a Public Offering (as hereinafter defined); (ii) shares of
the Company's Common Stock (or related options or rights) issued to the
Company's employees and directors pursuant to a plan adopted by the
Board of Directors; (iii) Common Stock issued by the Company upon the
conversion of the Series A Preferred Stock or Series B Preferred Stock
of the Company; and (iv) shares of the Company's capital stock issued in
connection with any existing option or right listed on the Disclosure
Schedule, stock split or stock dividend by the Company."
4. The Stock Purchase Agreement is hereby amended by amending and
restating Section 11.2 thereof as follows:
"11.2 Modification and Waiver.
(a) No amendment or modification to this Agreement
shall be made without the approval of the Company and the
affirmative vote or written consent of the holders of two-thirds
of the Securities issued pursuant to this Agreement.
(b) Approval, waiver and consent by the Investors
hereunder shall require the affirmative vote or written consent
of the holders of two-thirds of the Securities issued pursuant to
this Agreement.
(c) Notwithstanding anything to the contrary herein
contained, the fulfillment by the Company of a condition
precedent to an Investor's obligation to purchase Securities
hereunder my be waived from time to time by any such Investor by
written consent to, or waiver of, any such condition."
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5. Except as expressly amended hereby, the Stock Purchase
Agreement is hereby ratified and confirmed in every respect and shall
remain in full force and effect in accordance with its terms.
6. The amendment set forth herein shall be effective when
executed by the Company and all the Investors holding the Securities
issued under the Stock Purchase Agreement.
7. This Amendment, Consent and Waiver shall be construed and
enforced in accordance with the laws of the State of Texas.
8. This Amendment, Consent and Waiver shall be effective as
to each Shareholder who executes a counterpart of this Amendment,
Consent and Waiver notwithstanding the failure of any other shareholder
to execute this Amendment, Consent and Waiver.
9. This Amendment, Consent and Waiver may be executed in one
or more counterparts, all of which shall together constitute a single
agreement. A facsimile of this Amendment, Consent and Waiver shall be
deemed to be an original executed counterpart.
Executed effective the day herein first written above.
PACKAGED ICE, INC.
By: ________________________________
XXXXX X. XXXXXX, PRESIDENT
SHAREHOLDERS:
____________________________________
(Signature)
____________________________________
(Printed Name)
____________________________________
(Title, if applicable)
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EXHIBIT A
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INVESTORS' NAMES AND ADDRESSES SHARES OF COMMON STOCK
ISSUED UNDER STOCK
PURCHASE AGREEMENT
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Xxxxx Xxxxxxxxx, Xxxx Xxxx, Xxxxxx Xxxxxxx, 50,000
Xxxxxxx X. Xxxxxxxxx, Xxxxxxxx X. Xxxxxxxxx
Trustees UID 12/18/80 FBO Xxxxxxx X. Xxxxxxxxx
1301 Avenue of the Americas
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
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Xxxxx Xxxxxxxxx, Xxxx Xxxx, Xxxxxx Xxxxxxx, 50,000
Xxxxxxx X. Xxxxxxxxx, Xxxxxxxx X. Xxxxxxxxx
Trustees
UID 12/18/80 FBO Grandchildren
1301 Avenue of the Americas
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
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Xxxxxx X. Xxxxxxxxx 100,000
00000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
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J. Xxxx Xxxxxxxx 10,000
ABS Plaza
00000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
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Lancer Corporation 45,000
000 X. Xxxxx
Xxx Xxxxxxx, XX 00000
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Southwest Texas Equipment 15,000
Distributors, Inc.
Attention: Xxxx Xxxxx, III, President
0000 X. Xxxxxxx
Xxx Xxxxxxx, XX 00000
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Xxxx Xxxxxx 5,000
Xxxxxxxx Media Systems
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
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Xxxxxxxxx Xxxxxxxxxx Xxxxxxx 5,000
Grupo Comercial Santa Fe
Diego de Almagro #105 Pte.
Col. Mirasierra
San Xxxxx Xxxxx Xxxxxx, N.L. C.P. 66240
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