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EXHIBIT 4.1
FIRST AMENDMENT TO WARRANT AGREEMENT
This First Amendment to Warrant Agreement (the "Amendment") is made and
entered into as of April 24, 2001, between Packaged Ice, Inc., a Texas
corporation (the "Company") and U.S. Trust Company of Texas, N.A., a national
banking association (the "Warrant Agent"). Capitalized terms used in this
Amendment and not otherwise defined herein shall have the meanings assigned to
them in the Warrant Agreement between the Company and the Warrant Agent dated as
of October 16, 1997 (the "Warrant Agreement").
RECITALS
WHEREAS, the Company and the Warrant Agent are parties to the Warrant
Agreement; and
WHEREAS, the Company and the Warrant Agent desire to amend the Warrant
Agreement so that holders of the Warrants may exercise such warrants in a
cashless exercise; and
WHEREAS, Section 7.01 of the Warrant Agreement allows the parties to
amend the Warrant Agreement without the consent of any holder of any Warranty
Certificate in any manner which the Company may deem necessary or desirable,
provided that the amendment does not adversely affect in any material respect
the interests of the holders of the Warrant Certificates; and
WHEREAS, the changes that the Company desires to make to the Warrant
Agreement provide an additional means for the holders of the Warrants to
exercise such warrants and will not adversely affect in any material respect the
interests of any of the holders of the Warrant Certificates.
NOW, THEREFORE, the parties hereto agree as follows:
A. Amendment to the Warrant Agreement. The Warrant Agreement is hereby
amended as follows:
Article II is hereby amended by adding a new Section 2.04 as follows:
2.04 Net Issue Exercise. (a) Notwithstanding any provisions
herein to the contrary, if the Current Market Value (determined
pursuant to Section 5.01(e)) of one Share is greater than the Exercise
Price (at the date of calculation as set forth below), in lieu of
exercising a Warrant for cash or by certified or official bank check,
the holder may elect to receive Shares equal to the value (as
determined below) of the Warrant in which event the Company shall issue
to the holder of the Warrant a number of Shares computed using the
following formula:
X = Y (A - B)
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A
Where X = the number of Shares to be issued to the
holder
Y = the number of Shares purchasable under
the Warrant
A = the Current Market Value of one Share on
the Exercise Date (as is defined in Section
2.04(c))
B = Exercise Price (as adjusted to the
Exercise Date)
For the purposes of the above calculation, Current Market Value of one
Share shall be determined as provided by Section 5.01(e) of this
Agreement.
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(b) Warrants may be exercised on or after the Exercisability
Date by surrendering at any Warrant Exercise Office the Warrant
Certificate evidencing such Warrants with a Cashless Exercise Form
substantially in the form of Exhibit D hereto (a "Cashless Exercise")
duly completed and signed by the registered holder or holders thereof
or by the duly appointed legal representative thereof or by a duly
authorized attorney. Each Warrant may be exercised only in whole.
(c) Upon such surrender of a Warrant Certificate at any
Warrant Exercise Office (other than any Warrant Exercise Office that
also is an office of the Warrant Agent), such Warrant Certificate shall
be promptly delivered to the Warrant Agent. When exercised pursuant to
this Section 2.04, the "Exercise Date" for a Warrant shall be the date
when the items referred to in the first sentence of paragraph (b) of
this Section 2.04 are received by the Warrant Agent at or prior to 2:00
p.m., Dallas, Texas time, on a Business Day and the exercise of the
Warrants will be effective as of such Exercise Date. If any items
referred to in the first sentence of paragraph (b) are received after
2:00 p.m., Dallas, Texas time, on a Business Day, the exercise of the
Warrants to which such item relates will be effective on the next
succeeding Business Day. Notwithstanding the foregoing, in the case of
an exercise of Warrants on the Expiration Date (as defined in Section
2.01), if all of the items referred to in the first sentence of
paragraph (b) are received by the Warrant Agent prior to 5:00 p.m.,
Dallas, Texas time, on such Expiration Date, the exercise of the
Warrants to which such items related will be effective on the
Expiration Date.
(d) Upon the exercise of a Warrant in accordance with the
terms hereof and the receipt of a Warrant Certificate, the Warrant
Agent shall, as soon as practicable, advise the Company in writing of
the number of Warrants (giving effect to Section 5.01(i) below)
exercised in accordance with the terms and conditions of this Agreement
and the Warrant Certificates, the instructions of each exercising
holder of the Warrant Certificates with respect to delivery of the
Shares to which such holder is entitled upon such exercise, and such
other information as the Company shall reasonably request.
(e) Subject to Section 5.02 hereof, as soon as practicable
after the exercise of any Warrant or Warrants in accordance with the
terms hereof, the Company shall issue or cause to be issued to or upon
the written order of the registered holder of the Warrant Certificate
evidencing such exercised Warrant or Warrants, a certificate or
certificates evidencing the Shares to which such holder is entitled, in
fully registered form, registered in such name or names as may be
directed by such holder pursuant to the Cashless Exercise. The Warrant
Agent shall have no obligation to ascertain the number of Shares to be
issued with respect to the exercised Warrant or Warrants. Such
certificate or certificates evidencing the Shares shall be deemed to
have been issued and any persons who are designated to be named therein
shall be deemed to have become the holder of record of such Shares as
of the close of business on the Exercise Date. After such exercise of
any Warrant or Warrants, the Company shall also issue or cause to be
issued to or upon the written order of the registered holder of such
Warrant Certificate, a new Warrant Certificate, countersigned by the
Warrant Agent pursuant to the Company's written instruction, evidencing
the number of Warrants, if any, remaining unexercised unless such
Warrants shall have expired.
B. Ratification. Except as expressly amended hereby all terms and
provisions of the Warrant Agreement, as heretofore amended, remain unamended,
unmodified and in full force and effect. The Warrant Agreement, as amended
hereby, and all rights and powers created thereby, is in all respects ratified
and confirmed. From and after the date hereof, all references to the Warrant
Agreement shall be deemed to mean the Warrant Agreement as amended by this
Amendment.
C. Counterparts. This Amendment may be executed in counterparts, each
of which,
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when executed and delivered, shall for all purposes be deemed an original. All
of the counterparts, when taken together, shall constitute but one and the same
Amendment.
D. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflict of laws provisions thereof.
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[SIGNATURE PAGE TO FIRST AMENDMENT TO WARRANT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Warrant Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
PACKAGED ICE, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: President & C.O.O.
U.S. TRUST COMPANY OF TEXAS, N.A.
as Warrant Agent
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice-President
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EXHIBIT D
(CASHLESS EXERCISE FORM)
(To be executed upon exercise of Warrants on the Exercise Date)
The undersigned hereby irrevocably elects to exercise ________________
of the Warrants for such number of Shares set forth on the calculation attached
hereto pursuant to the Cashless Exercise provisions of Section 2.04 of the
Warrant Agreement, dated as of April 17, 1997, between Packaged Ice, Inc. and
U.S. Trust Company of Texas, N.A. The undersigned requests that a certificate
representing such Shares be registered in the name of _________________________
whose address is _______________________ and that such certificate be delivered
to ___________________________ whose address is ______________________________.
Any cash payments to be paid in lieu of a fractional Share should be made to
______________________ whose address is _____________________________ and the
check representing payment thereof should be delivered to _____________________
whose address is ____________________________.
Dated , 2001
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Name of holder of
Warrant Certificate:
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(Please Print)
Tax Identification or
Social Security Number:
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Address:
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Signature:
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Note: The above signature must
correspond with the name as written upon
the face of this Warrant Certificate in
every particular, without alternation or
enlargement or any change whatever
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Calculation of Cashless Exercise
Current Market Value of one Share: $ = A
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Exercise Price, as adjusted: $ = B
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A - B = = C
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Number of Shares purchasable under the Warrant or Warrants, as adjusted:
= Y
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Number of Shares to be issued =
( x ) /
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(Insert Y) (Insert C) (Insert A)
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