As filed with the Securities and Exchange Commission on April 14, 1999.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PACKAGED ICE, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
TEXAS 5199 76-0316492
(State or other jurisdiction of (Primary standard industrial (I.R.S. Employer
Incorporation or organization) classification code number) Identification No.)
</TABLE>
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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
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
300 CONVENT STREET, SUITE 1500
SAN ANTONIO, TEXAS 78205
(210) 281-7234
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time 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. [X]
If any of the securities being registered on this form are to be offered
in connection with the information of a holding company and there is compliance
with General Instruction G, 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(d)
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. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================
PROPOSED
MAXIMUM PROPOSED
OFFERING MAXIMUM
TITLE OF EACH CLASS OF PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE AMOUNT TO BE PER SHARE OFFERING REGISTRATION
REGISTERED REGISTERED (1) PRICE (1) FEE
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 5,000,000 Shares $5.69 $28,450,000 $7,920
======================================================================================================
</TABLE>
(1) The registration fee was calculated in accordance with Rule 457(c) based on
the average of high and low prices per share of the common stock as
reported by The Nasdaq Stock Market, Inc. for the five business days
immediately prior to April 14, 1999.
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.
================================================================================
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED APRIL 14, 1999
PROSPECTUS
5,000,000 SHARES
PACKAGED ICE, INC.
COMMON STOCK
We are offering 5,000,000 shares of our common stock. We plan to issue and
sell the shares from time to time to the owners of businesses, properties and/or
assets we may acquire in the future. The specific terms upon which we will issue
these shares will be determined by negotiations with the owners of the
businesses we acquire. We expect the shares we issue in an acquisition to be
reasonably related to prevailing market prices of common stock at or near the
time we enter an acquisition agreement or consummate the acquisition.
Our common stock trades on the Nasdaq National Market under the symbol
"ICED." On April 13, 1999, the last reported sale price of the common stock on
the Nasdaq National Market was $6.00 per share.
We will pay all expenses of this offering. We will not pay underwriting
discounts or commissions in connection with issuing the shares in acquisitions,
although we may pay finder's fees in specific acquisitions. Any person receiving
a finder's fee may be deemed an underwriter within the meaning of the Securities
Act of 1933.
All of the shares offered by this prospectus may, subject to certain
conditions, also be offered and resold from time to time pursuant to this
prospectus by the persons who receive the shares in acquisitions. Subject to
certain conditions, this prospectus may also be used by persons to reoffer and
resell shares of our common stock covered by prospectuses under other
registration statements that they received in connection with acquisitions.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED ANY OF THE SECURITIES OFFERED BY THIS PROSPECTUS OR
DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
Where You Can Find More Information......................... 3
Forward-Looking Statements.................................. 4
The Company................................................. 4
Acquisition Terms........................................... 5
Market Price and Dividend Policy............................ 5
Description of Capital Stock................................ 6
Selling Shareholders........................................ 6
Legal Matters............................................... 7
Experts..................................................... 7
----------------
Frequently in this prospectus, we refer to ourselves, Packaged Ice, Inc., as
"we," "us," or "Packaged Ice." Generally we refer to ourselves as "we" or "us"
when discussing our operations. As the context requires, references to "we" and
"us" include all of our subsidiaries, including Reddy Ice Corporation and Cassco
Ice & Cold Storage, Inc. Generally, we refer to ourselves as "Packaged Ice" when
discussing our legal entity which will issue the common shares, its structure or
other matters which require us to differentiate such legal entity from the group
of companies we use to conduct our business.
2
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any reports, statements, or other information we file with the SEC at its public
reference rooms in Washington, D.C. (450 Fifth Street, N.W. 20549), New York,
New York (7 World Trade Center, Suite 1300 10048) and Chicago, Illinois (500
West Madison Street, Suite 1400 60661). Please call the SEC at 1-800-SEC-0330
for further information on the public reference rooms. Our filings are also
available to the public on the internet, through a database maintained by the
SEC at http://www.sec.gov.
We filed a registration statement on Form S-4 to register with the SEC the
shares offered by this prospectus. This prospectus is part of that registration
statement. As permitted by SEC rules, this prospectus does not contain all the
information contained in the registration statement or the exhibits to the
registration statement. You may refer to the registration statement and
accompanying exhibits for more information about us and our stock.
The SEC allows us to "incorporate by reference" into this document the
information we file with them. This means that we can disclose important
business, financial and other information to you by referring you to other
documents separately filed with the SEC. All information incorporated by
reference is part of this document, unless and until that information is updated
and superseded by the information contained in this document or any information
incorporated later.
We incorporate by reference the documents listed below:
1. Annual Report on Form 10-K for the fiscal year ended December 31,
1998.
2. Current Report on Form 8-K dated August 14, 1998 as amended by Form
8-K/A dated December 22, 1998.
3. Current Report on Form 8-K dated April 1, 1998, as amended by Form
8-K/A dated May 12, 1998.
We also incorporate by reference all future filings we make with the SEC
between the date of this document and the date upon which we sell all the
securities we offer with this document.
You may obtain copies of these documents at no cost by requesting them
from us in writing at the following address:
Packaged Ice, Inc.
Attn: Investor Relations
8572 Katy Freeway, Suite 101
Houston, Texas 77024
Tel: (713) 464-9384
To ensure timely delivery of these materials, you should make any request
no later than five business days prior to the date on which you intend to vote
on or otherwise consent to or approve our acquisition of your business. You
should rely only on the information provided in this document or incorporated by
reference. We have not authorized anyone else to provide you with different
information. We are not making an offer of these securities in any state where
the offer is not permitted. Information is accurate only as of the date of the
documents containing the information, unless the information specifically
indicates that another date applies.
3
<PAGE>
FORWARD-LOOKING STATEMENTS
This document contains certain forward-looking statements within the
meaning of the federal securities laws. We base forward-looking statements on
our reasonable beliefs, assumptions and expectations of our future economic
performance, taking into account information currently available to us. However,
forward-looking statements involve risks and uncertainties which could cause
actual outcomes and results to differ materially from the expected outcomes and
results expressed or implied in such forward-looking statements. Some of the
risks and uncertainties which could cause actual outcomes and results to differ
materially from our expectations include:
o the impact of general economic conditions and seasonality;
o industry-wide market factors, including competition;
o our ability to identify and complete acquisitions and successfully
integrate the operating philosophies and practices of the businesses we
acquire;
o the availability of capital sources;
o our substantial leverage and our ability to service debt; and
o the availability of credit facilities and restrictive covenants.
The words "believes," "anticipates," "expects" and similar expressions are
intended to identify such forward-looking statements. We undertake no obligation
to publicly update or revise any forward-looking statements, whether as a result
of new information, future events or other factors.
THE COMPANY
We are the largest manufacturer and distributor of packaged ice in the
United States and currently serve over 70,000 customer locations in 26 states
and the District of Columbia.
We predominantly operate in two business segments, ice products and
non-ice operations. Ice products consist of (a) the manufacture and delivery of
traditional ice from a central point of production to the point of sale and (b)
the installation of Ice Factories, our proprietary machines that produce,
package, store and merchandise ice at the point of sale through an automated,
self-contained system. Non-ice operations consist of refrigerated warehousing,
bottled water and the manufacturing and leasing of ice equipment.
As of December 31, 1998, Packaged Ice owned or operated 76 ice
manufacturing plants, four manufacturing facilities for other than ice
production (such as bottled water and manufacturing and leasing of ice
equipment), 39 distribution centers and nine refrigerated warehouses. In
addition, Packaged Ice has an installed base of 1,835 Ice Factories.
Packaged Ice's principal executive offices are located at 8572 Katy
Freeway, Suite 101, Houston, Texas 77024. Its telephone number is (713)
464-9384.
4
<PAGE>
ACQUISITION TERMS
This prospectus covers the offer and sale of up to 5,000,000 shares of our
common stock that we may issue from time to time in connection with the future
direct and indirect acquisitions of other businesses, properties or securities
in business combination transactions. We will furnish this prospectus to the
securityholders or owners of the businesses we acquire in exchange for the
shares we offer by this prospectus.
We expect that the terms upon which we issue the shares will be determined
through negotiations with the securityholders or principal owners of the
businesses whose securities or assets we acquire. We expect that the shares we
issue in an acquisition will be valued at prices reasonably related to the
market price for our common stock prevailing at or near the time we enter into
an acquisition agreement or consummate the acquisition.
We will pay all expenses of the offering of these shares. We will pay no
underwriting discounts or commissions in connection with the issuance of these
shares, although we may pay finder's fees with respect to specific acquisitions.
Any person receiving a finder's fee may be deemed to be an "underwriter" within
the meaning of the Securities Act of 1933.
We will use this prospectus in connection with the issuance of our shares
only in those acquisitions that would be exempt from registration except for the
possibility of integration with other transactions. If an acquisition would not
be so exempt, we will furnish those offerees this prospectus, as amended by a
post-effective amendment to the registration statement (on Form S-4) of which
this prospectus is a part.
If we consummate an acquisition (or series of acquisitions since the date
of our most recently audited financial statements) that would have a material
financial effect on us, we will file a Current Report on Form 8-K containing the
financial and other information about the acquisition(s) that would be material
to subsequent purchasers of the shares we offer through this prospectus.
Our common stock is quoted on The Nasdaq National Market. The shares we
issue in acquisitions may be subject to restrictions on resale imposed by Rules
144 and 145 under the Securities Act of 1933. In addition, we may impose certain
contractual holding period requirements upon persons acquiring our shares in
acquisitions.
MARKET PRICE AND DIVIDEND POLICY
Our common stock is quoted on The Nasdaq National Market under the symbol
"ICED." The following table sets forth the range of high and low sales prices of
our common stock as reported on Nasdaq for the periods indicated. Prior to
January 29, 1999, the day on which our common stock was first publicly traded,
there was no public market for our common stock.
1999 HIGH LOW
------- -------
First Quarter (beginning January 29, 1999)...... $8.63 $6.00
Second Quarter (through April 13, 1999)......... $6.00 $5.00
On April 13, 1999, the closing sale price of our common stock as quoted on
Nasdaq was $6.00 per share. As of April 5, 1999, there were approximately 140
shareholders of record of our common stock. However, we estimate that there were
approximately 2,470 beneficial holders of our common stock as of April 5, 1999.
5
<PAGE>
We have never declared or paid any cash dividends on our common stock and
we do not anticipate paying cash dividends in the foreseeable future. In
addition, our credit facility and, in some instances, our indenture governing
the 9 3/4% senior notes, prohibit us from paying dividends on our common stock.
We intend to retain any future earnings to fund the growth of our business.
DESCRIPTION OF CAPITAL STOCK
GENERAL
Packaged Ice is currently authorized to issue up to 50,000,000 shares of
common stock, par value $0.01 per share, and up to 5,000,000 shares of preferred
stock, par value $0.01 per share. The board of directors of Packaged Ice has
authorized the designation of 500,100 shares of preferred stock. As of April 5,
1999, the two classes of preferred stock were as follows:
o 500,000 shares as 10% exchangeable preferred stock, of which 272,890
shares are outstanding; and
o 100 shares as Series C Preferred Stock, of which 100 shares are
outstanding.
In addition, 393,700 shares and 1,000,000 shares of common stock have been
reserved for issuance upon the exercise of stock options under the 1994 and 1998
Stock Option Plans, respectively, and 2,979,423 shares have been reserved for
issuance upon the exercise of outstanding warrants.
COMMON STOCK
Holders of common stock are entitled to one vote per share on all matters
to be voted on by shareholders of Packaged Ice. In the event that our board of
directors declares dividends out of legally available funds, holders of common
stock are entitled to ratably receive such dividends, subject to the payment of
any preferential dividends with respect to any convertible preferred stock
outstanding at such time. In the event of our liquidation, dissolution or
winding up, holders of common stock are entitled to share ratably in any assets
available for distribution to such holders after payment of all our obligations,
subject to the payment of any preferential distributions with respect to any
preferred stock outstanding at such time. Holders of common stock do not have
preemptive rights or cumulative voting rights. The common stock has no
conversion rights or other subscription rights and there are no redemption or
sinking fund provisions applicable to the common stock.
SELLING SHAREHOLDERS
This prospectus may also be used for reoffers and resales by persons who
receive our common stock in acquisitions and who may be entitled to reoffer and
resell such shares under circumstances requiring the use of a prospectus.
However, no person will be authorized to use this prospectus for an offer of
such shares without first obtaining our consent. We may consent to the use of
this prospectus by such selling shareholders for a limited period of time and
subject to limitations and conditions, which may be varied by agreement between
us and such selling shareholders. A supplement to this prospectus will set forth
information identifying any such selling shareholders and disclosing the
information about such selling shareholders and the securities to be sold as may
then be required by the Securities Act and the rules of the SEC.
6
<PAGE>
LEGAL MATTERS
The validity of the common stock offered by this prospectus will be passed
upon for us by Akin, Gump, Strauss, Hauer & Feld, L.L.P.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference from Packaged Ice, Inc.'s (the "Company") Annual Report on Form 10-K
for the year ended December 31, 1998 and the consolidated financial statements
of Reddy Ice Corporation incorporated in the prospectus by reference from the
Company's current report on Form 8-K/A dated May 12, 1998, have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their reports, which
are incorporated herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
The financial statements of Cassco Ice & Cold Storage, Inc. as of June 27,
1998 and June 28, 1997 and for the years then ended have been incorporated by
reference herein and in the registration statement in reliance upon the report
of KPMG LLP, independent certified public accountants, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
7
<PAGE>
===============================================================================
5,000,000 SHARES
PACKAGED ICE, INC.
COMMON STOCK
---------------
PROSPECTUS
---------------
,1999
===============================================================================
INVESTORS SHOULD RELY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS. NO
DEALER, SALESPERSON OR OTHER PERSON IS AUTHORIZED TO GIVE INFORMATION THAT IS
NOT CONTAINED IN THIS PROSPECTUS. THIS PROSPECTUS IS NOT AN OFFER TO SELL NOR IS
IT SEEKING AN OFFER TO BUY THESE SECURITIES IN ANY JURISDICTION WHERE THE OFFER
TO SALE IS NOT PERMITTED. THE INFORMATION IN THIS PROSPECTUS IS CORRECT ONLY AS
OF THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF THE DELIVERY OF THIS
PROSPECTUS OR ANY SALE OF THESE SECURITIES.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Packaged Ice is empowered by Art. 2.02-1 of the Texas Business Corporation
Act, 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. Packaged Ice 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 bylaws of
Packaged Ice provide for indemnification by Packaged Ice of its directors and
officers to the fullest extent permitted by the Texas Business Corporation Act.
In addition, Packaged Ice 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 Packaged
Ice shall not be liable to Packaged Ice or its shareholders for monetary damages
for an act or omission in a director's capacity as director of Packaged Ice.
Packaged Ice has obtained an insurance policy providing for
indemnification of officers and directors of Packaged Ice and certain other
persons against liabilities and expenses incurred by any of them in certain
stated proceedings and under certain stated conditions. Packaged Ice has entered
into indemnification agreements with each of its directors and certain of its
executive officers. The indemnification agreements provide that Packaged Ice
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 Packaged Ice) 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 Packaged Ice; 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 Packaged Ice, 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 Packaged Ice, such individuals may be indemnified, to the extent not
prohibited by applicable laws or as determined by a court of competent
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 Packaged
Ice. 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.
II-1
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ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBITS
The following exhibits are filed as part of this Registration Statement:
EXHIBIT NO. DESCRIPTION
- ----------- -------------
3.1 -- Restated Articles of Incorporation of Packaged Ice 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 Packaged Ice filed with the Secretary of State of the State of
Texas on August 11, 1998. (Exhibit 3.2) (6)
3.3 -- Amended and Restated Bylaws of Packaged Ice, effective as of
January 20, 1997. (Exhibit 3.5)(1)
4.1 -- Certificate of Designation of Series C Preferred Stock. (Exhibit
4.1)(4)
4.2 -- Amended and Restated Certificate of Designation of 10%
Exchangeable Preferred Stock. (Exhibit 4.12)(5)
4.3 -- 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)(5)
4.4 -- Registration Rights Agreement dated April 30, 1998 by and among
Packaged Ice, Ares and Silver Brands Partners, L.P. (formerly
SV). (Exhibit 4.8)(5)
4.5 -- Common Stock Purchase Warrant, dated July 17, 1997, executed by
Packaged Ice for the benefit of Silver Brands. (Exhibit 10.39)(2)
4.6 -- Registration Rights Agreement by and between Packaged Ice and
Ares, dated February 3, 1999. (Exhibit 4.6)(7)
4.7 -- Registration Rights Agreement by and between Packaged Ice and
Silver Brands, dated February 3, 1999. (Exhibit 4.7)(7)
4.8 -- Registration Rights Agreement by and among Packaged Ice, and Dale
Johnson, Alan Bernstein and Robert Miller, dated as of April 17,
1997. (Exhibit 10.9)(1)
4.9 -- Warrant Agreement among Packaged Ice 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)
4.10 -- Registration Rights Agreement, dated as of July 17, 1997, by and
between Packaged Ice and Silver Brands. (Exhibit 10.41)(2)
4.11 -- Warrant Agreement among Packaged Ice 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)(3)
4.12 -- Common Stock Purchase Warrant Agreement issued by Packaged Ice
and issued to Culligan Water Technologies, Inc., dated December
2, 1997. (Exhibit 10.3)(4)
4.13 -- Registration Rights Agreement by and among Packaged Ice, Culligan
Water Technologies, Inc. and Erica Jesselson. (Exhibit 10.5)(4)
5.1+ -- Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
23.1+ -- Consent of Deloitte & Touche LLP.
23.2+ -- Consent of KPMG LLP.
23.3+ -- Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in
Exhibit 5.1).
24.1+ -- Power of Attorney (included on Signature Page).
- ---------------
+ Filed herewith.
(1) Filed as an Exhibit to Packaged Ice'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 Packaged Ice's Registration
on Statement on Form S-4 (No. 333-29357), filed with the Commission on July
29, 1997.
II-2
<PAGE>
(3) Filed as an Exhibit to Packaged Ice's third Quarter Disclosure on Form 10-Q
filed with the Commission on November 14, 1997.
(4) Filed as an Exhibit to Form 8-K filed on behalf of Packaged Ice with the
Commission on December 15, 1997.
(5) Filed as an Exhibit to Form 8-K/A filed on behalf of Packaged Ice with the
Commission on May 12, 1998.
(6) Filed as an Exhibit to Amendment No. 1 to Packaged Ice's Registration
Statement on Form S-1 (File No. 333-60627), filed with the Commission on
October 2, 1998.
(7) Filed as an Exhibit to the Annual Report on Form 10-K filed on behalf of
Packaged Ice with the Commission on March 26, 1999.
ITEM 22. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the Prospectus any facts or events arising
after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement; provided, however, that notwithstanding the
foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered
would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Securities and Exchange Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement; provided, however, that the
undertakings set forth in clauses (i) and (ii) above do not
apply if the information required to be included in a
post-effective amendment by those clauses is contained in
periodic reports filed by the Company pursuant to Section 13
or 15(d) of the Securities and Exchange Act of 1934 that are
incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement 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-3
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(5) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus
will contain the information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in addition to
the information called for by the other items of the applicable form.
(6) That every prospectus: (i) that is filed pursuant to paragraph (5)
immediately preceding, or (ii) that purports to meet the requirements of section
10(a)(3) of the Act and is used in connection with an offering of securities
subject to Rule 415, will be filed as a part of an amendment to the registration
statement and will not be used until such amendment is effective, and that, for
purposes of determining any liability under the Securities Act of 1933, each
such post-effective amendment 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.
(7) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this
Form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means. This
includes information contained in documents filed subsequent to the effective
date of the registration statement through the date of responding to the
request.
(8) To supply by means of a post-effective amendment all required
information concerning a transaction, and the company being acquired involved
therein, that was not the subject of and included in the registration statement
when it became effective.
(9) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, 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 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 Act and will
be governed by the final adjudication of such issue.
II-4
<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 April 14, 1999.
PACKAGED ICE, INC.
By: /s/ JAMES F. STUART
James F. Stuart, Chief Executive Officer
POWER OF ATTORNEY
The undersigned directors and officers of Packaged Ice hereby constitute
and appoint James F. Stuart and James C. Hazlewood, with full power to act and
with full power of substitution and resubstitution, our true and lawful
attorney-in-fact and agent with full power to execute in our name and behalf in
the capacities indicated below any and all amendments (including post-effective
amendments and amendments thereto) to this Registration Statement and to file
the same, with all exhibits and other documents relating thereto and any
registration statement relating to any Offerings made pursuant to this
Registration Statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act with the Securities and Exchange Commission and
hereby ratify and confirm all that such attorney-in-fact or his substitute shall
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this Registration
Statement has been signed by the following persons in the capacities indicated
on April 14, 1999:
NAME TITLE
-------- --------
/s/ JAMES F. STUART Chief Executive Officer (principal
James F. Stuart executive officer) and Director
/s/ A.J. LEWIS III President
A.J. Lewis III
/s/ JAMES C. HAZLEWOOD Chief Financial Officer
James C. Hazlewood (principal accounting officer)
/s/ RICHARD A. COONROD Director
Richard A. Coonrod
/s/ ROBERT G. MILLER Director
Robert G. Miller
/s/ ROD J. SANDS Director
Rod J. Sands
/s/ STEVEN P. ROSENBERG Director
Steven P. Rosenberg
/s/ ARTHUR E. BIGGS Director
Arthur E. Biggs
EXHIBIT 5.1
[AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. LETTERHEAD]
April 14, 1999
Packaged Ice, Inc.
8572 Katy Freeway, Suite 101
Houston, Texas 77024
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as counsel for Packaged Ice, Inc., a Texas corporation (the
"Company"), in connection with the preparation and filing by the Company with
the Securities and Exchange Commission of a Registration Statement on Form S-4
(the "Registration Statement") under the Securities Act of 1933, as amended. The
Registration Statement relates to an aggregate of 5,000,000 shares of the
Company's common stock, $.01 par value per share ("Common Stock").
In so acting, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records, agreements,
documents, and instruments, and such certificates or comparable documents of
public officials and of officers and representatives of the Company, and have
made such inquiries of such officers and representatives, as we have deemed
relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied upon certificates of officers and representatives of the Company.
<PAGE>
Packaged Ice, Inc.
April 14, 1999
Page 2
Based on the foregoing, and subject to the qualifications stated herein,
we are of the opinion that the Shares have been duly and validly authorized and
are validly issued, fully paid and non-assessable
The opinions expressed herein are limited to the corporate laws of the
state of Texas and we express no opinion as to the effect on the matters covered
by this letter of any other laws.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm under the caption "Legal Matters" in
the Prospectus that is a part of the Registration Statement.
Very truly yours,
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in the Registration Statement of
Packaged Ice, Inc. and subsidiaries (the "Company") on Form S-4 of our report
dated March 19, 1999, appearing in the Annual Report on Form 10-K of the Company
for the year ended December 31, 1998 and our report on Reddy Ice Corporation
dated April 14, 1998, appearing in the Current Report on Form 8-K/A dated May
12, 1998, and to the reference to us under the heading "Experts" in the
Prospectus, which is a part of this Registration Statement.
DELOITTE & TOUCHE LLP
Houston, Texas
April 14, 1999
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Cassco Ice and Cold Storage, Inc.:
We consent to incorporation by reference in the registration statement on
Form S-4 of Packaged Ice, Inc. for our report dated July 24, 1998, with respect
to the balance sheets of Cassco Ice and Cold Storage, Inc. as of June 27, 1998
and June 28, 1997 and the related statements of earnings, shareholder's equity,
and cash flows for the years then ended, which report appears in the Form 8-K of
Packaged Ice, Inc., dated August 14, 1998, and to the reference to our firm
under the heading "Experts" in the prospectus.
KPMG LLP
Richmond, Virginia
April 14, 1999
