AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 27, 1999.
REGISTRATION NO. 333-60627
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
------------------------
PACKAGED ICE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
TEXAS 2097 76-0316492
(STATE OR OTHER (PRIMARY STANDARD
JURISDICTION OF INDUSTRIAL
INCORPORATION OR CLASSIFICATION CODE (I.R.S. EMPLOYER
ORGANIZATION) NUMBER) IDENTIFICATION NO.)
------------------------
8572 KATY FREEWAY, SUITE 101
HOUSTON, TEXAS 77024
(713) 464-9384
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
JAMES F. STUART
CHIEF EXECUTIVE OFFICER
8572 KATY FREEWAY, SUITE 101
HOUSTON, TEXAS 77024
(713) 464-9384
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
ALAN SCHOENBAUM T. MARK KELLY
AKIN, GUMP, STRAUSS, HAUER & FELD, MICHAEL P. FINCH
L.L.P. VINSON & ELKINS L.L.P.
300 CONVENT STREET, SUITE 1500 1001 FANNIN, 2300 FIRST CITY TOWER
SAN ANTONIO, TEXAS 78205 HOUSTON, TEXAS 77002
(210) 281-7234 (713) 758-2222
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
As soon as practicable after the Registration Statement becomes effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting discounts and
commissions, are set forth in the following table. The Company shall pay the
estimated expenses of issuance and distribution in proportion to the respective
number of shares sold by it in the Offering. Each amount, except for the
Commission and National Association of Securities Dealers, Inc. ("NASD") fees,
is estimated.
Commission registration fees............ $ 42,406
NASD filing fees........................ $ 14,875
Nasdaq National Market application and
listing fees.......................... $ 91,000
Transfer agent's and registrar's fees
and expenses.......................... $ 10,000
Printing and engraving expenses......... $ 275,000
Legal fees and expenses................. $ 325,000
Accounting fees and expenses............ $ 240,000
Blue sky fees and expenses.............. $ 500
Standby commitment fee to existing
noteholder............................ $ 680,000
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Total.............................. $ 1,673,781
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is empowered by Art. 2.02-1 of the Texas Business Corporation
subject to the procedures and limitations stated therein, to indemnify any
person who was, is or is threatened to be made a named defendant or respondent
in a proceeding because the person is or was a director or officer against
judgments, penalties (including excise and similar taxes), fines, settlements
and reasonable expenses (including court costs and attorneys' fees) actually
incurred by the person in connection with the proceeding. The Company is
required by Art. 2.02-1 to indemnify a director or officer against reasonable
expenses (including court costs and attorneys' fees) incurred by him in
connection with a proceeding in which he is a named defendant or respondent
because he is or was a director or officer if he has been wholly successful, on
the merits or otherwise, in the defense of the proceeding. The statute provides
that indemnification pursuant to its provisions is not exclusive of other rights
of indemnification to which a person may be entitled under any bylaw, agreement,
vote of shareholders or disinterested directors, or otherwise. The Articles and
bylaws of the Company provide for indemnification by the Company of its
directors and officers to the fullest extent permitted by the Texas Business
Corporation Act. In addition, the Company has, pursuant to Article 1302-7.06 of
the Texas Miscellaneous Corporation Laws Act, provided in its articles of
incorporation that, to the fullest extent permitted by applicable law, a
director of the Company shall not be liable to the Company or its shareholders
for monetary damages for an act or omission in a director's capacity as director
of the Company.
The Company has entered into indemnification agreements with each of its
directors and certain of its executive officers. The indemnification agreements
provide that the Company shall indemnify these individuals against certain
liabilities (including settlements) and expenses actually and reasonably
incurred by them in connection with any threatened or pending legal action,
proceeding or investigation (other than actions brought by or in the right of
the Company) to which any of them is, or is threatened to be, made a party by
reason of their status as a director, officer or agent of the Company; PROVIDED
that, with respect to a civil, administrative or investigative (other than
criminal) action, such individual acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
Company, and with respect to any criminal proceedings, he or she had no
reasonable cause to believe his or her conduct was unlawful. With respect to any
action brought by or in the right of the Company, such individuals may be
indemnified, to the extent not prohibited by applicable laws or as determined by
a court of competent
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jurisdiction, against expenses actually and reasonably incurred by them in
connection with such action if they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
Company. The agreements also require indemnification of such individuals for all
reasonable expenses incurred in connection with the successful defense of any
action or claim and provide for partial indemnification in the case of any
partially successful defense.
The Company has obtained an insurance policy providing for indemnification
of officers and directors of the Company and certain other persons against
liabilities and expenses incurred by any of them in certain stated proceedings
and under certain stated conditions. The Company has entered into separate
indemnification agreements with each of its directors which may require the
Company, among other things, to indemnify such directors against certain
liabilities that may arise by reason of their status or service as directors to
the maximum extent permitted under Texas law.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since January 1996, the Company issued and sold the following unregistered
securities:
(1) On January 17, 1997, the Company issued 124,831 shares of Series
B Convertible Preferred Stock to Food Fund, Norwest and an accredited
investor for an aggregate cash consideration of $757,761. This issuance was
exempt from registration under Section 4(2) of the Securities Act.
(2) On February 18, 1997, the Company issued 6,000 shares of Common
Stock to an employee for an aggregate cash consideration of $45,000. This
issuance was exempt from registration under Section 4(2) of the Securities
Act.
(3) On April 17, 1997, the Company issued a total of 995,020 shares
of Common Stock valued at $10 per share to the former shareholders of
Southwest Texas Packaged Ice, Inc., Mission Party Ice, Inc. and
Southwestern Ice, Inc. as partial consideration for the Company's
acquisition of Southwest Texas Packaged Ice, Inc., Mission Party Ice, Inc.
and Southwestern Ice, Inc. This issuance was exempt from registration under
Section 4(2) of the Securities Act.
(4) On April 17, 1997, the Company issued $50 million of 12% Senior
Notes due 2004 with detachable warrants to purchase 511,855 shares of
Common Stock for $0.01 per share. In connection with such issuance, the
Company issued warrants to purchase $127,972 shares of Common Stock for
$0.01 per share to Jefferies, the initial purchaser of 12% Senior Notes as
partial consideration for its services. These issuances were exempt from
registration under Section 4(2) of the Securities Act.
(5) On May 22, 1997, in connection with its acquisition of various
assets of The Pipkin Company (d/b/a The Ice Company), the Company issued to
H.O. Pipkin and Joy E. Pipkin a total of 2,500 shares of Common Stock
valued at $10 per share as partial consideration for the acquisition. This
issuance was exempt from registration under Section 4(2) of the Securities
Act.
(6) On May 22, 1997, the Company issued to James M. Raines 18,271
shares of Common Stock in exchange for the return of warrants entitling
James M. Raines to purchase 43,296 shares of Common Stock at an exercise
price of $5.78 per share. This issuance was exempt from registration under
Section 3(a)(9) of the Securities Act.
(7) On May 30, 1997, as partial consideration for its acquisition of
various assets of Apache Ice Company, the Company issued 4,500 shares of
Common Stock valued at $10 per share to an accredited investor. This
issuance was exempt from registration under Section 4(2) of the Securities
Act.
(8) On June 2, 1997, the Company issued 2,628 shares of Common Stock
to Lancer Corporation for an aggregate cash consideration of $26,280. This
issuance was exempt from registration under Section 4(2) of the Securities
Act.
(9) On July 17, 1997, the Company issued 300,000 shares of Common
Stock to SV for an aggregate cash consideration of $3,000,000. In
connection with such issuance and without additional
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consideration, the Company also issued a warrant to purchase up to 100,000
shares of Common Stock for $14 per share. This issuance was exempt from
registration under Section 4(2) of the Securities Act.
(10) On August 21, 1997, as partial consideration for its acquisition
of various assets of Whitted Ice Service, the Company issued a total of
15,411 shares of Common Stock valued at $10 per share to the former
shareholders of Whitted Ice Service. This issuance was exempt from
registration under Section 4(2) of the Securities Act.
(11) On September 3, 1997, the Company issued a total of 15,000
shares of Common Stock valued at $10 per share to the former shareholders
of First Ice Company and Codorus Leasing Company as partial consideration
for the Company's acquisition of both First Ice Company and Codorus Leasing
Company. This issuance was exempt from registration under Section 4(2) of
the Securities Act.
(12) On September 4, 1997, as partial consideration for its
acquisition of various assets of A-Alaska Ice, Inc., the Company issued to
A-Alaska, Inc. a total of 56,500 shares of Common Stock. This issuance was
exempt from registration under Section 4(2) of the Securities Act.
(13) On September 10, 1997, the Company issued a total of 15,000
shares of Common Stock valued at $10 per share to the former shareholders
of McGehee-Neutze, Inc. as partial consideration for the Company's
acquisition of McGehee-Neutize, Inc. This issuance was exempt from
registration under Section 4(2) of the Securities Act.
(14) On September 12, 1997, the Company issued a total of 51,000
shares of Common Stock valued at $10 per share to the former shareholders
of Century Ice of Tulsa, Inc. and Ice Cold Enterprises, Inc. as partial
consideration for the Company's acquisition of both Century Ice of Tulsa,
Inc. and Ice Cold Enterprises, Inc. This issuance was exempt from
registration under Section 4(2) of the Securities Act.
(15) On September 27, 1997, as partial consideration for its
acquisition of various assets of
A-Arctic Inc, the Company issued to Donald S. Olsen and Christopher S.
Olsen a total of 30,000 shares of Common Stock valued at $10 per share.
This issuance was exempt from registration under Section 4(2) of the
Securities Act.
(16) On October 19, 1997, as partial consideration for its acquisition
of various assets of Ed's Refrigeration, Inc., the Company issued to Edmond
Paques and True Dee Paques a total of 10,000 shares of Common Stock valued
at $10 per share. This issuance was exempt from registration under Section
4(2) of the Securities Act.
(17) On October 16, 1997, the Company issued to Jefferies, the
initial purchaser, $25 million of 12% Senior Notes due 2004 with detachable
warrants to purchase 255,943 shares of Common Stock for $0.01 per share,
for an aggregate of $25 million in cash. This issuance was exempt from
registration under Rule 144A of the rules promulgated under the Securities
Act.
(18) On October 27, 1977, the Company issued a total of 127,800
shares of Common Stock valued at $10 per share to the former shareholders
of Central Arkansas Cold Storage, Inc. and Golden Eagle Ice Company as
partial consideration for the Company's acquisition of both Central
Arkansas Cold Storage, Inc. and Golden Eagle Ice Company. This issuance was
exempt from registration under Section 4(2) of the Securities Act.
(19) On December 2, 1997, the Company issued to Culligan 100,000
shares of 10% Exchangeable Preferred Stock, 40 shares of Series C Preferred
Stock, and warrants, having an exercise price of $13 per share, to purchase
1,807,692 shares of Common Stock, for an aggregate of $10 million. On the
same date, the Company issued to an accredited investor 15,000 shares of
10% Mandatorily Redeemable Preferred Stock, 6 shares of Series C Preferred
Stock and warrants to purchase an aggregate of 115,385 shares of Common
Stock, for an aggregate of $1.5 million. These issuances were exempt from
registration under Section 4(2) of the Securities Act.
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(20) On December 15, 1997 the Company issued to Culligan 135,000
shares of 10% Exchangeable Preferred Stock and 54 shares of Series C
Preferred Stock for an aggregate purchase price of $13.5 million. This
issuance was exempt from registration under Section 4(2) of the Securities
Act.
(21) On January 15, 1998, the Company issued 4,500 shares of Common
Stock for an aggregate cash consideration of $27,990 and issued 1,800
shares of Common Stock for an aggregate cash consideration of $12,150 upon
exercise of options by a former employee. These issuances were exempt from
registration under Section 3(a)(1) of the Securities Act.
(22) On Januay 28, 1998, the Company issued to Jefferies, the initial
purchaser, $145 million of 9 3/4% Series A Senior Notes due 2005. This
issuance was exempt from registration under Section 4(2) of the Securities
Act.
(23) On February 6, 1998, the Company issued 10,000 shares of Common
Stock valued at $10 per share to the former shareholders of Fiesta Fun Ice
Co. as partial consideration for the Company's acquisition of Fiesta Fun
Ice Co. This issuance was exempt from registration under Section 4(2) of
the Securities Act.
(24) On February 13, 1998, the Company issued a total of 188,308
shares of Common Stock valued at $13 per share to the former shareholders
of Scianna's Party Ice, Inc. as partial consideration for the Company's
acquisition of Scianna's Party Ice, Inc. This issuance was exempt from
registration under Section 4(2) of the Securities Act.
(25) On March 5, 1998, the Company issued a total of 38,400 shares of
Common Stock valued at $13 per share to the former shareholders of Party
Time Ice, Co. as partial consideration for the Company's acquisition of
Party Time Ice, Co. This issuance was exempt from registration under
Section 4(2) of the Securities Act.
(26) On March 6, 1998, the Company issued a total of 91,565 shares of
Common Stock valued at $13 per share to the former shareholders of J.P.
Albert Ice, Co., as partial consideration for the Company's acquisition of
J.P. Albert Ice, Co. This issuance was exempt from registration under
Section 4(2) of the Securities Act.
(27) On March 11, 1998, the Company issued to Arthur Biggs, Charlotte
Biggs and other accredited investors a total of 379,619 shares of Common
Stock valued at $10 per share as partial consideration for the Company's
acquisition of Artic Ice Corporation. This issuance was exempt from
registration under Section 4(2) of the Securities Act.
(28) On March 24, 1998, the Company issued a total of 192,308 shares
of Common Stock valued at $13 per share to the former shareholders of
Anniston Ice & Coal Company, Inc. as partial consideration for the
Company's acquisition of Anniston Ice & Coal Company, Inc. This issuance
was exempt from registration under Section 4(2) of the Securities Act.
(29) On April 30, 1998, the Company issued to Jefferies, the initial
purchaser, $125 million of 9 3/4% Series A Senior Notes due 2005. On the
same date, the Company issued to Ares and SV 400,000 shares of Series A 13%
Preferred Stock and warrants to purchase 975,752 shares of Common Stock for
an aggregate cash consideration of $40,000,000. These issuances were exempt
from registration under Section 4(2) of the Securities Act.
(30) On June 30, 1998, the Company issued to Tim D. Davis a warrant
to purchase 15,000 shares of Common Stock at an exercise price of $15 per
share as partial consideration for the Company's acquisition of Clinton Ice
Company, Inc. This issuance was exempt from registration under Section 4(2)
of the Securities Act.
(31) On July 29, 1998, the Company issued 3,000 shares of Common
Stock valued at $10 per share to Carroll E. Summers, Jr. as partial
consideration for the Company's acquisition of a certain track of real
property located at 4301 Loop 20, Laredo, Webb County, Texas. This issuance
was exempt from registration under Section 4(2) of the Securities Act.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
The following is a list of exhibits filed as part of this Registration
Statement. Where so indicated by footnote, exhibits which were previously filed
are incorporated by reference.
EXHIBIT NO. DESCRIPTION
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1.1 -- Form of Underwriting Agreement.(12)
3.1 -- Restated Articles of Incorporation of
the Company filed with the Secretary of
State of the State of Texas on February
5, 1992. (Exhibit 3.2)(1)
3.2 -- Articles of Amendment to the Restated
Articles of Incorporation of the Company
filed with the Secretary of State of the
State of Texas on August 11, 1998.(12)
3.3 -- Amended and Restated Bylaws of the
Company, effective as of January 20,
1997. (Exhibit 3.5)(1)
4.1 -- Securityholder's and Registration Rights
Agreement, dated as of October 16, 1997,
among the Company and the Initial
Purchaser. (Exhibit 4.6)(1)
4.2 -- Certificate of Designation of Series C
Preferred Stock. (Exhibit 4.1)(5)
4.3 -- Certificate of Designation of 10%
Exchangeable Preferred Stock. (Exhibit
4.2)(5)
4.4 -- Certificate of Designation of 13%
Exchangeable Preferred Stock Series A.
(Exhibit 4.10)(9)
4.5 -- Amended and Restated Certificate of
Designation of 10% Exchangeable
Preferred Stock. (Exhibit 4.12)(9)
4.6 -- Purchase Agreement dated January 22,
1998 by and among Packaged Ice and
Jefferies. (Exhibit 4.2)(6)
4.7 -- Registration Rights Agreement dated
January 28, 1998 by and among Packaged
Ice, the Subsidiary Guarantors and
Jefferies. (Exhibit 4.3)(6)
4.8 -- Indenture by and among Packaged Ice, as
Issuer, the Subsidiary Guarantors and
U.S. Trust Company of Texas, N.A. as
Trustee dated as of January 28, 1998,
Amended and Restated as of April 30,
1998. (Exhibit 4.1)(9)
4.9 -- Purchase Agreement among the Company,
its subsidiaries and Jefferies as
Initial Purchaser ($125,000,000 Senior
Notes Offering) dated April 23, 1998.
(Exhibit 4.2)(9)
4.10 -- Registration Rights Agreement by and
among Packaged Ice, the Subsidiary
Guarantors and Jefferies dated January
28, 1998 and Amended and Restated as of
April 30, 1998. (Exhibit 4.3)(9)
4.11 -- Securities Purchase Agreement dated
April 30, 1998 by and among Packaged
Ice, Ares Leveraged Investment Fund,
L.P., and SV. (Exhibit 4.4)(9)
4.12 -- Warrant Agreement by and among Packaged
Ice and Ares Leveraged Investment Fund,
L.P. dated April 30, 1998. (Exhibit
4.5)(9)
4.13 -- Warrant Agreement by and among Packaged
Ice and SV dated April 30, 1998.
(Exhibit 4.6)(9)
4.14 -- Exchange Offer Registration Rights
Agreement dated April 30, 1998 by and
among Packaged Ice, Ares Leveraged
Investment Fund, L.P. and SV. (Exhibit
4.7)(9)
4.15 -- Registration Rights Agreement dated
April 30, 1998 by and among Packaged Ice
and Ares Leveraged Investment Fund, L.P.
and SV. (Exhibit 4.8)(9)
4.16 -- Registration Rights Agreement Dated
April 30, 1998 by and among Packaged Ice
and SV (Exhibit 4.9)(9)
4.17 -- Common Stock Purchase Warrant, dated
July 17, 1997, executed by the Company
for the benefit of SV Capital Partners,
L.P. (Exhibit 10.39)(2)
4.18 -- Specimen of Stock Certificate.+
5.1 -- Opinion of Akin, Gump, Strauss, Hauer &
Feld, L.L.P.(12)
10.1 -- Agreement and Plan of Merger by and
among the Company, Packaged Ice Mission,
Inc., Mission and A. J. Lewis III, made
as of March 25, 1997. (Exhibit 10.1)(1)
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10.2 -- Agreement and Plan of Merger by and
among the Company, Packaged Ice STPI,
Inc., STPI and the Shareholders of STPI,
made as of March 25, 1997. (Exhibit
10.2)(1)
10.3 -- Noncompetition Agreement by and among
the Company, Packaged Ice Mission, Inc.,
Packaged Ice STPI, Inc. and A. J. Lewis
III, dated as of April 17, 1997.
(Exhibit 10.4)(1)
10.4 -- Registration Rights Agreement by and
among the Company, A. J. Lewis III and
Liza B. Lewis, dated as of April 17,
1997. (Exhibit 10.5)(1)
10.5 -- Agreement and Plan of Merger by and
among the Company, Packaged Ice South-
western, Inc., SWI and the shareholders
of SWI, made as of March 25, 1997.
(Exhibit 10.6)(1)
10.6 -- Form of Noncompetition Agreement among
the Company, Packaged Ice Southwestern,
Inc., and each of Dale Johnson, Alan
Bernstein and Robert Miller
individually, dated as of April 17,
1997. (Exhibit 10.8)(1)
10.7 -- Registration Rights Agreement by and
among the Company, and Dale Johnson,
Alan Bernstein and Robert Miller, dated
as of April 17, 1997. (Exhibit 10.9)(1)
10.8 -- 1994 Stock Option Plan, dated July 26,
1994 (Exhibit 10.10)(1)
10.9 -- Form of Stock Option Plan Agreements
issued under Stock Option Plan. (Exhib-
it 10.11)(1)
10.10 -- Warrant Agreement among the Company and
U.S. Trust Company of Texas, N.A., a
national banking association, as Warrant
Agent, dated as of April 17, 1997.
(Exhibit 10.12)(1)
10.11 -- Form of Indemnification Agreement
entered into by the Company in favor of
members of the Board of Directors.
(Exhibit 10.31)(1)
10.12 -- Development and Manufacturing Agreement
by and between Lancer Corporation and
the Company, dated April 13, 1993.
(Exhibit 10.32)(1)
10.13 -- License Agreement by and among the
Company, Hoshizaki Electric Co., Ltd.
and Hoshizaki America, Inc., dated May
28, 1993. (Exhibit 10.37)(1)
10.14 -- Registration Rights Agreement, dated as
of July 17, 1997, by and between the
Company and SV Capital Partners, L.P.
(Exhibit 10.41)(2)
10.15 -- Warrant Agreement among the Company and
U.S. Trust Company of Texas, N.A., a
national banking association, as Warrant
Agent, dated as of October 16, 1997.
(Exhibit 10.7)(4)
10.16 -- Trademark License Agreement between
Culligan International Company and the
Company dated as of October 31, 1997.
(Exhibit 10.40)(4)
10.17 -- Securities Purchase Agreements with
Culligan Water Technologies, Inc. dated
December 2, 1997. (Exhibit 10.1)(5)
10.18 -- Common Stock Purchase Warrant Agreement
issued by the Company and issued to
Culligan Water Technologies, Inc.
issuing 1,807,692 fully paid and
nonassessable shares of the Company's
common stock at an exercise price of
$13.00 per share dated December 2, 1997.
(Exhibit 10.3)(5)
10.19 -- Registration Rights Agreement by and
among the Company, Culligan Water Tech-
nologies, Inc. and Erica Jesselson.
(Exhibit 10.5)(5)
10.20 -- Culligan Voting Agreement by and among
the Company and Culligan Water
Technologies, Inc. dated December 2,
1997. (Exhibit 10.6)(5)
10.21 -- Letter Agreement dated December 2, 1997.
(Exhibit 10.7)(5)
10.22 -- Option Agreement. (Exhibit 10.12)(5)
10.23 -- Credit Agreement dated April 30, 1998 by
and among the Company and Antares
Leveraged Capital Corp., individually,
and as agent for The Other Financial
Institutions. (Exhibit 10.1)(9)
10.24 -- Security Agreement dated April 30, 1998,
by and among the Company and Antares
Leveraged Capital Corp. (Exhibit
10.2)(9)
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10.25 -- Security Agreement dated April 30, 1998,
by and among Reddy Ice Corporation,
Golden Eagle Ice-Texas, Inc., Packaged
Ice, Southeast, Inc., Packaged Ice
Leasing, Inc., Southco Ice, Inc.,
Southwest Texas the Company,
Southwestern Ice, Inc., Southern Bottled
Water Company, Inc., Mission Party Ice,
Inc. and Antares Leveraged Capital Corp.
(Exhibit 10.3)(9)
10.26 -- Guaranty dated April 30, 1998 by and
among Reddy Ice Corporation, Mission
Party Ice, Inc., Southwest Texas the
Company, Southwestern Ice, Inc., Golden
Eagle Ice-Texas. Inc., Packaged Ice
Southeast, Inc., Packaged Ice Leasing,
Inc., Southern Bottled Water Company,
Inc., and Southco Ice, Inc. (Exhibit
10.4)(9)
10.27 -- Stock Purchase Agreement between the
Company and Suiza Foods Corporation
dated March 27, 1998. (Exhibit 2.1)(9)
10.28 -- Recapitalization Agreement dated August
4, 1998 between SV and the Company.(12)
10.29 -- Employment Agreement of James F. Stuart
dated effective August 1, 1998.(12)
10.30 -- Employment Agreement of A.J. Lewis III
dated effective August 1, 1998.(12)
10.31 -- Employment Agreement of Jimmy C. Weaver
dated effective May 1, 1998.(12)
10.32 -- Employment Agreement of James C.
Hazlewood dated effective November 1,
1997.(12)
10.33 -- [Intentionally omitted]
10.34 -- 1998 Stock Option Plan, dated June 19,
1998.(12)
11.1 -- Statement of earnings per share.(12)
12.1 -- Historical statement of ratios of
earnings to fixed charges.(12)
12.2 -- Pro forma statement of ratios of
earnings to fixed charges.(12)
21.1 -- List of subsidiaries.(12)
23.1 -- Consent of Akin, Gump, Strauss, Hauer &
Feld, L.L.P. (included in the opinion
filed as Exhibit 5.1).
23.2 -- Consent of Deloitte & Touche LLP.(12)
23.3 -- Consent of KPMG LLP.(12)
23.4 -- Consent of Arthur Andersen LLP.(12)
24.1 -- Power of Attorney(12)
27.1 -- Financial Information Schedule (included
in Commission-filed copy only).
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+ Filed herewith.
(1) Filed as an Exhibit to the Company's Registration Statement on Form S-4
(File No. 333-29357), filed with the Commission on June 16, 1997.
(2) Filed as an Exhibit to the Amendment No. 1 to the Company's Registration
Statement No. 333-29357 on Form S-4 with the Commission on July 29, 1997.
(3) Filed as an Exhibit to the Amendment No. 2 to the Company's Registration
Statement No. 333-29357 on Form S-4 with the Commission on August 22,
1997.
(4) Filed as an Exhibit to the Company's Third Quarter Disclosure on Form 10-Q
with the Commission on November 14, 1997.
(5) Filed as an Exhibit to Form 8-K filed on behalf of the Company with the
Commission on December 15, 1997.
(6) Filed as an Exhibit to Form 8-K filed on behalf of the Company with the
Commission on February 9, 1997.
(7) Filed as an Exhibit to the Company's Fourth Quarter Disclosure on Form
10-K filed with the Commission on March 30, 1998.
(8) Filed as an Exhibit to Form 8-K filed on behalf of the Company with the
Commission on April 2, 1998.
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<PAGE>
(9) Filed as an Exhibit to Form 8-K/A filed on behalf of the Company with the
Commission on May 12, 1998.
(10) Filed as an Exhibit to the Company's First Quarter Disclosure on Form 10-Q
filed with the Commission on May 15, 1998.
(11) Filed as an Exhibit to the Company's Registration Statement on Form S-4
(File No. 333-581111), filed with the Commission on June 30, 1998.
(12) Previously filed.
(b) Financial Statement Schedules
None.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the
registrant pursuant to Item 14 herein, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of Prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of Prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of the
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of Prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on January 26, 1999.
PACKAGED ICE, INC.
By: /s/ JAMES F. STUART
JAMES F. STUART,
CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act this Registration
Statement has been signed by the following persons in the capacities indicated
on January 26, 1999:
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------------------------------ ------------------------------------ -----------------
<C> <S> <C>
/s/JAMES F. STUART Chief Executive Officer and Director January 26, 1999
JAMES F. STUART (principal executive officer)
* President and Director January 26, 1999
A.J. LEWIS III
* Chief Financial Officer January 26, 1999
JAMES C. HAZLEWOOD (principal accounting officer)
* Director January 26, 1999
RICHARD A. COONROD
* Director January 26, 1999
ROBERT G. MILLER
* Director January 26, 1999
ROD J. SANDS
* Director January 26, 1999
STEVEN P. ROSENBERG
* Director January 26, 1999
ARTHUR E. BIGGS, SR.
/s/JAMES F. STUART January 26, 1999
*ATTORNEY-IN-FACT
</TABLE>
II-9
INCORPORATED UNDER THE
LAWS OF THE STATE OF TEXAS
COMMON STOCK COMMON STOCK
NUMBER PACKAGED ICE, INC. SHARES
[C ] [ ]
CUSIP 695148 10 6
SEE REVERSE FOR
CERTAIN DEFINITIONS
This Certifies that
SPECIMEN
is the record holder of
FULLY PAID AND NON-ASSESSABLE SHARES
OF THE PAR VALUE OF ONE CENT ($0.01), OF THE COMMON STOCK OF
PACKAGED ICE, INC.
transferable on the books of the Corporation by the holder hereof in person, or
by duly authorized Attorney, upon surrender of this Certificate properly
endorsed. This Certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized officers.
/s/ SPECIMEN [PACKAGED ICE, INC. /s/ SPECIMEN
PRESIDENT CORPORATE SEAL TEXAS] SECRETARY
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
PACKAGED ICE, INC.
The Restated Articles of Incorporation of the Corporation, on file in the
office of the Secretary of State of the State of Texas, (i) deny preemptive
rights of shareholders to subscribe for or to acquire shares or other securities
of any kind of the Corporation and (ii) contain a statement of the designations,
preferences, limitations, and relative rights of the shares of each class
authorized to be issued and the authority of the Board of Directors to fix and
determine the rights and preferences of each series of preferred stock relative
to other such series.
The Corporation will furnish without charge to the holder of this
certificate who so requests a full statement of the powers, designations,
preferences and relative, participating, optional of other special rights of
each class of stock or series thereof of the Corporation, and the
qualifications, limitations or restrictions of such preferences and/or rights.
Any such request should be made to the Secretary of the Corporation at its
principal place of business or registered office.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT-__________ Custodian____________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of
survivorship and not as tenants under Uniform Gifts to Minors
in common Act__________________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For Value Received,_______________________________________________________
hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________ shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint _____________________________________________
Attorney to transfer the said stock on the books of the within-named Corporation
with full power of substitution in the premises.
Dated__________________________________
NOTICE:
THE SIGNATURE(S) TO THIS X___________________________________________
ASSIGNMENT MUST CORRES- (SIGNATURE)
POND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF X___________________________________________
THE CERTIFICATE IN EVERY (SIGNATURE)
PARTICULAR WITHOUT ALTER-
ATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM) PURSUANT TO
S.E.C. RULE 17Ad-15.
- --------------------------------------------------------------------------------
SIGNATURE(S) GUARANTEED BY:
