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EXHIBIT 10.25
AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
This Amended and Restated Shareholders Agreement is made and entered
into effective September 20, 1995 by and among PACKAGED ICE, INC., a Texas
corporation (the "Company") and the Shareholders who have executed this
Agreement on one of the signature pages set forth below (collectively
"Shareholders" and individually "Shareholder").
W I T N E S S E T H:
WHEREAS, the Shareholders are the holders of all of the issued and
outstanding capital stock of the Company, which consists of common stock, with
each share having a par value of $.01 per share (the "Common Stock") and the
Series A Convertible Preferred Stock (the Series A Preferred Stock); and
WHEREAS, certain of the Shareholders and the Company are parties to a
Shareholders Agreement originally dated as of January 9, 1992 as amended by
that certain First Amendment to Shareholders Agreement dated January 4, 1994
(collectively, the "Original Shareholders Agreement"); and
WHEREAS, the Shareholders are desirous of making certain amendments
and modifications to the Original Shareholders Agreement by this Amended and
Restated Shareholders Agreement, which is being executed by the holders of not
less than eighty percent (80%) of the Common Stock of the Company, excluding
shares issued as of the date hereof, as required by Section 10 of the Original
Shareholders Agreement; and
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the parties hereby agree as follows:
1. Restriction on Transfer. Each Shareholder agrees not to
transfer, assign, hypothecate, pledge, or in any way alienate or dispose of any
of his or her Common Stock or Series A Preferred Stock (hereinafter the
"Stock"), or any right or interest therein, whether voluntary or by operation
of law, or by gift or otherwise, without the prior written consent of the
Company and the holders of not less than eighty percent (80%) of the Stock of
the Company except a transfer which meets the requirements of this Agreement.
Each Shareholder agrees that notwithstanding anything to the contrary contained
in this Agreement, all Stock now owned or hereafter acquired, including, but
not limited to, any Stock acquired pursuant to a stock option plan, stock
rights offering, or an employee benefit plan, or by purchase, gift, transfer,
inheritance or otherwise shall be subject to the terms and conditions hereof.
Any purported transfer in violation of any provision of this Agreement shall be
void and ineffectual, and shall not operate to transfer any interest or title
in the purported transferee.
2. Permitted Transfers. Subject to the conditions set forth
herein, the following transfers are permitted under the terms hereof:
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(A) The Company and the Shareholders do hereby consent to
all transfers by a Shareholder (or a deceased Shareholder's estate) to the
Company or to a Family Member, or to any corporation, partnership, or limited
liability company in which the Shareholder and the Shareholder's Family Members
own all of the outstanding equity securities. For the purposes of this
Agreement, a person's "Family Member" shall mean such person's spouse,
siblings, parents, children, or other lineal descendants (whether by adoption
or consanguinity), and shall also mean a trust, the primary beneficiary of
which is the person's spouse, siblings, parents, children, or other lineal
descendants (whether by adoption or consanguinity).
(B) Notwithstanding anything to the contrary contained in
this Agreement, it is expressly agreed that a Shareholder shall have the right
to transfer all or any part of his shares of Stock to any other member of that
Shareholder's Affiliate Group. For the purposes of this Agreement, "Affiliate
Group" shall mean those groups of Shareholders which are described on Exhibit
I, attached hereto and incorporated herein by reference.
In the event of a transfer pursuant to this Section 2 to any
person who is not a Shareholder, the transferee shall (by written supplement to
this Agreement) become a party to this Agreement and shall thereafter hold his
Stock subject to the terms, covenants and conditions contained in this
Agreement.
The Company covenants and agrees that it shall not issue
shares of Stock to any person who is not a party to this Agreement unless and
until such person shall (by written supplement to this Agreement) become a
party to this Agreement and shall thereafter hold his Stock subject to the
terms, covenants and conditions contained in this Agreement.
3. Right of First Refusal. Except for a sale or transfer
permitted under Section 2 of this Agreement, if a Shareholder desires to sell,
transfer (with or without consideration) or otherwise alienate or dispose of
all or any part of his Stock in a bona fide transaction, said Shareholder shall
first offer to sell to the Company said Stock. Such offer shall be made by an
irrevocable written offer to sell said Stock for the same price and on the same
terms as offered by any proposed transferee. The offer shall contain a true
and correct copy of any writing which contains a bona fide offer by which a
third party proposes to purchase the Stock and shall contain a complete
description of the transaction in which the Shareholder proposes to transfer
said Stock to any third party, including the name of the proposed transferee
and the consideration for and any other terms of the proposed transfer. The
Company shall have thirty (30) days after actual receipt of such offer within
which to advise the Shareholder whether or not the Company will purchase all of
the Stock so offered for the same price and on the same terms as those offered
to the proposed transferee. If the Company does not so elect to purchase all
of the offered Stock, the Company shall offer the right to purchase all such
Stock not being purchased by the Company to the other Shareholders as provided
in Section 5 of this Agreement. If the Company and all the other Shareholders
decline to purchase all of such Stock in accordance with this Section 3, the
Shareholder shall then have sixty (60) days within which to sell or transfer
the offered Stock to the third party named in the offer made by the Shareholder
to the Company, upon the exact terms described in such offer. As a condition
to the closing of any such transfer of Stock to a third party, the third party
shall (by written supplement to this Agreement) become a party to this
Agreement and shall thereafter hold his Stock
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subject to the terms, covenants and conditions contained in this Agreement. In
the event such a sale to a third party shall not be consummated as hereinabove
provided, the right of the Shareholder to effect such sale shall terminate and
the restrictions against sale or transfer contained in this Agreement shall
obtain with the same force and effect as if the actions set forth in this
Section 3 had not occurred.
4. Sale Price and Terms of Sale. The Closing of such sale shall
take place within ninety (90) days after the date on which the option to
purchase the Stock arose, at the principal offices of the Company, or such
other location as is mutually agreed to. At the Closing, the purchaser(s)
shall pay as a down payment ten percent (10%) of the purchase price, in cash,
and shall execute a promissory note for the balance due of such purchase price.
Such promissory note shall be payable in five (5) equal annual installments of
principal and interest, which interest shall accrue on the unpaid principal
balance of the note at the lesser of nine percent (9%) per annum or the prime
rate as announced by Texas Commerce Bank Houston, National Association on the
date of the note, with such rate of interest to be adjusted on each anniversary
date of the note, with such rate of interest never to exceed the maximum
interest rate permitted by law. Payments on the note shall commence on the
first of the month next following the expiration of twelve (12) months
following the date of the sale and shall continue annually thereafter until the
note is paid in full.
At the Closing of such sale, the seller shall assign
and deliver the certificates representing the Stock being sold (duly endorsed
for transfer and free of any liens or encumbrances whatsoever) to the
purchaser, and the purchaser shall deliver to the seller the consideration
therefor specified in accordance with this Agreement. In addition, the
purchaser shall pledge the purchased shares of Stock to the selling Shareholder
(or legal representative) as collateral, pursuant to a stock pledge agreement
reasonably acceptable to the parties thereto. Any stock transfer or similar
taxes involved in such sale shall be paid by the seller, and the seller shall
provide the purchaser with such evidence of the seller's authority to sell
hereunder and such tax lien waivers and similar instruments as the purchaser
may reasonably request.
5. Remaining Shareholders' Option. If the Company has an option
to purchase Stock under this Agreement and it does not elect to make the
purchase, or is legally unable to make the purchase, the President of the
Company shall notify the other Shareholders of the number of shares of Stock it
will not purchase and such other Shareholders shall have the option or
obligation (as the case may be) for a period of thirty (30) additional days, to
purchase all of such shares of Stock upon the same terms and conditions
described in this Agreement. Each such other Shareholder shall have the option
to purchase such portion of the Stock offered for sale under this Section 5 as
the number of shares of Stock owned by him or her at such time shall bear to
the total number of shares of Stock owned by all the other Shareholders,
excluding the selling Shareholder. If any Shareholder does not purchase his or
her full portion of such shares of Stock, the remaining shares of Stock may be
purchased by the other Shareholders pro rata in the same manner.
6. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns (including each transferee of any party's Stock); provided,
however, no transferee of Stock in a public offering registered under the
Securities Act of 1933 or in an unsolicited open market sale effected through a
securities broker
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shall be bound by or entitled to the benefits of this Agreement. As used in
this Agreement, the terms "Shareholder(s)" shall include any transferee of a
Shareholder, as appropriate, who is bound by and entitled to the benefits of
this Agreement under the preceding sentence.
7. Law Governing. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
8. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall together constitute a single agreement. A
facsimile of an executed Agreement shall be deemed to be an original, executed
counterpart.
9. Amendments. This Agreement may be amended, and any provision
hereof may be waived, only by a written agreement executed by the holders of
not less than eighty percent (80%) of the Common Stock and Series A Preferred
Stock voting as a single class with the Series A Preferred Stock voting on an
as-converted basis. Notwithstanding the foregoing, the parties agree that the
Company is authorized to execute additional counterparts of this Agreement at
such times as new shareholders enter into this Agreement.
10. Legends. The Company will cause each certificate that
evidences any Stock that is subject to this Agreement to bear a legend
substantially as follows, which shall be typed, printed, or stamped thereon in
a conspicuous manner:
"The shares evidenced by this certificate are subject to an
Amended and Restated Shareholders Agreement dated September 20, 1995,
among the Company and certain of its shareholders. The Company will
furnish to the record holder of this certificate (without charge) a
copy of such Agreement upon written request therefor to the Company at
its principal place of business or registered office."
The Company agrees that a counterpart of this Agreement shall be kept at the
principal office of the Company and shall be subject to the same right of
examination by any shareholder of the Company, in person or by agent, attorney,
or other designated representative, as are the books and records of the
Company.
11. Termination. This Agreement shall terminate only (i) if the
Company permanently ceases to do business; (ii) if there is consummated an
underwritten public offering of the Stock of the Company which results in net
proceeds to the Company and the Shareholders of at least $7,500,000; or (iii)
upon the written agreement of the holders of no less than eighty percent (80%)
of the outstanding Common Stock and Series A Preferred Stock voting as a single
class.
12. Construction. Whenever used herein, the singular number shall
include the plural, and the plural number shall include the singular, and the
masculine gender shall include the feminine and the neuter, and the feminine
shall include the masculine and the neuter, and the neuter shall include the
masculine and the feminine.
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13. Community Property. If a Shareholder is married on the date
of the execution of this Agreement, he or she shall be joined in the execution
hereof by his or her spouse to evidence the agreement of such spouse that the
provisions of this Shareholders Agreement shall bind any community property
interest he or she may now or hereafter own in the Stock; provided, however,
such spouse's execution and joinder herein shall not create any ownership
interest in any of the Stock.
14. Waiver. The failure of any party to insist in any one or more
cases upon the strict performance of any of the terms, covenants, conditions,
provisions or agreements of this Agreement, or to exercise any option herein
contained, shall not be construed as a waiver or relinquishment for the future
of any such term, covenant, condition, provision or agreement of this
Agreement.
15. Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties with respect to the subject matter
hereof. Any and all prior Shareholders Agreements (including the Original
Shareholders Agreement), discussions, representations, negotiations,
understandings and agreements are hereby merged into this Agreement and shall
not survive the execution hereof.
16. Headings; Gender. The captions and headings throughout this
Agreement are for convenience and reference only, and the words contained
herein shall in no way be deemed to define, limit, describe, explain, modify,
amplify or add to the interpretation, construction or meaning of any provisions
of or the scope or intent of this Agreement nor in anyway affect this
Agreement.
17. Corporate Authority. Each corporation which is a party to
this Agreement respectively represents and warrants to the other parties that
all necessary corporate action has been duly taken to authorize the execution
and delivery of this Agreement and the performance or observance of the
provisions of this Agreement.
18. Further Assurances. The parties agree that they will, at any
time and from time to time, upon request of the other, do, execute, acknowledge
and deliver, or will cause to be done, executed, acknowledged and delivered,
all such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances as may be reasonably necessary to carry out the purpose
or intent of the provisions of this Agreement.
19. Notices. Any notice or other communication provided for
herein or given hereunder to a party hereto shall be in writing and shall be
deemed to have been duly given if signed by the party giving it. Notice shall
be deemed effective upon delivery by hand, or on the third (3rd) business day
after it is deposited in the United States mail, postage prepaid (registered or
certified mail), or on the business day after it is sent by Federal Express or
similar overnight service to the addresses of Shareholders as set forth on the
stock transfer records of the Company and to the Company at 0000 Xxxx Xxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 00000 or to such other addresses as a party shall
provide to the other parties in accordance with this Section.
20. Severability. The provisions of this Agreement are severable
and the invalidity or unenforceability of any provision hereof shall not affect
the validity or enforceability of any other
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provisions. In addition, in the event that any provision of this Agreement (or
portion thereof) is determined by a court to be unenforceable as drafted by
virtue of the scope, duration, extent or character of any obligation contained
therein, the parties acknowledge that it is their intention that such provision
(or portion thereof) shall be construed in a manner designed to effectuate the
purposes of such provision to the maximum extent enforceable under applicable
law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
The Company: PACKAGED ICE, INC.
By:
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XXXXX X. XXXXXX, President
SIGNATURE PAGE FOLLOWS
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Spouses Joinder as to
Community Interest: Shareholders:
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(signature)
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(printed name)
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(title, if applicable)
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EXHIBIT I
AFFILIATE GROUPS
1. The following persons shall be members of the Affiliate Group known as
the "Xxxxxxx Companies Group":
Xxxxxxx Companies, Inc. and any affiliate, subsidiary, parent
corporation of Xxxxxxx Companies, Inc.
2. The following persons shall be members of the Affiliate Group known as
the "Norwest/Food Fund Group":
The Food Fund Limited Partnership ("Food Fund") and Norwest
Equity Partners V, a Minnesota Limited Partnership ("Norwest"), and all general
and limited partners of either such entity, and any entities controlled by
Norwest Corporation.
3. The following persons shall be members of the Affiliate Group known as
the "Xxxxx Group":
Xxxxxxx X. Xxxxxxx Xxxxxxxx X.X. Xxxxxxx
X.X. Xxxxx, Xx. Xxxxx X. Xxxxx
X.X. Xxxxx, III Xxxxx X. Xxxxx
Xxxxx X. Xxxxxx Xxxx Xxxxx, Xx.
4. The following persons shall be members of the Affiliate Group known as
the "Stuart Group":
Xxxx Xxxxx
Xxxxx X. Xxxxxx
5. The following persons shall be members of the Affiliate Group known as
the "Xxxxxxxxx Group":
Xxxxxx X. Xxxxxxxxx
Xxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxx Xxxxxx
Xxxxxxx Xxxxxxxxx
Any individual designated by Xxxxxx X. Xxxxxxxxx to serve on
the Board of Directors of the Company as his designee pursuant
to any voting agreement among the Company, Xxxxxx X. Xxxxxxxxx
and a majority or more of its shareholders
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