AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 28, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PACKAGED ICE, INC.
(Exact name of Registrant as specified in its charter)
TEXAS 76-0316492
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
8572 KATY FREEWAY, SUITE 101
HOUSTON, TEXAS 77024
(Address of principal executive offices)
(Zip Code)
PACKAGED ICE, INC. 2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
JAMES F. STUART
CHIEF EXECUTIVE OFFICER
8572 KATY FREEWAY, SUITE 101
HOUSTON, TEXAS 77024
(713) 464-9384
(Name and address, including zip code, and
telephone number 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) 281-7000
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE(2) PRICE(2) FEE(2)
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value per share 250,000 $3.8125 $953,125 $251.63
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(1) Issuable upon the exercise of options available for grant under the
Packaged Ice, Inc. 2000 Employee Stock Purchase Plan. The number of shares
of common stock registered hereby is subject to adjustment to prevent
dilution resulting from stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c) and (h). The calculation of the proposed maximum offering
price is based upon the aggregate exercise price for shares of common stock
issuable upon the exercise of options available for grant under the
Employee Stock Purchase Plan, and is based upon the average of the high and
low sales prices of the common stock of Packaged Ice on March 22, 2000, as
reported by the Nasdaq National Market.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
NOTE. The document(s) containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended. Such documents need not be filed with the
Securities and Exchange Commission either as part of this registration statement
or as prospectuses or prospectus supplements pursuant to Rule 424 of the
Securities Act. These documents and the documents incorporated by reference in
the registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act. SEE Rule 428(a)(1) of the Securities Act.
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PACKAGED ICE, INC.
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2000 EMPLOYEE STOCK PURCHASE PLAN
250,000 SHARES OF COMMON STOCK
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THIS INFORMATION STATEMENT RELATES TO 250,000 SHARES OF OUR COMMON STOCK
ISSUABLE PURSUANT TO THE TERMS OF THE 2000 EMPLOYEE STOCK PURCHASE PLAN
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THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES THAT HAVE
BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this information statement. Any representation to the
contrary is a criminal offense.
THE DATE OF THIS PROSPECTUS IS MARCH 28, 2000.
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INTRODUCTION
The shares of common stock to which this prospectus relates are to
be issued upon the exercise of options to be granted to all regularly employed
full-time employees of Packaged Ice and our subsidiaries pursuant to the terms
of the Employee Stock Purchase Plan. The Employee Stock Purchase Plan is
intended to qualify as an "employee stock purchase plan" within the meaning of
Section 423 of the Internal Revenue Code of 1986, as amended (the "Internal
Revenue Code") and the provisions of the Employee Stock Purchase Plan will be
construed in a manner consistent with the requirements of Section 423 of the
Internal Revenue Code.
This information statement relates to 250,000 shares of common stock
for issuance under the Employee Stock Purchase Plan, subject to adjustment in
certain events. The Employee Stock Purchase Plan was adopted by our Board of
Directors on December 13, 1999. The Employee Stock Purchase Plan is effective as
of the filing of the registration statement of which this prospectus is a part.
The purpose of the Employee Stock Purchase Plan is to provide
eligible employees of Packaged Ice and our designated subsidiaries with an
opportunity to acquire an interest in Packaged Ice through the purchase of our
common stock.
The Employee Stock Purchase Plan is not subject to the Employee
Retirement Income Security Act of 1974.
You may sell all or any part of the shares of common stock acquired
under the Employee Stock Purchase Plan publicly without restriction from time to
time if you are not deemed to be our "affiliate" within the meaning of the
Securities Act. We will not receive any of the proceeds of any such resales. As
more fully described below, if you are an affiliate, you may generally sell
shares acquired under the Employee Stock Purchase Plan only by compliance with
the applicable requirements of Rule 144 under the Securities Act, except for the
one-year holding period requirement, or pursuant to a reoffering prospectus or
other registration statement filed by us under the Securities Act, if such a
prospectus or other registration statement is so filed and becomes effective
under the Securities Act. An affiliate is generally defined to be a person who
directly or indirectly controls, or is controlled by, or is under common control
with, Packaged Ice. You should consult counsel for additional information
regarding impediments with respect to your purchase and sale of common stock.
However, as explained further below, there are certain tax advantages to holding
the stock acquired through the Employee Stock Purchase Plan through the holding
period (described below).
A summary of the material features of the Employee Stock Purchase
Plan is set forth below and is qualified in its entirety by reference to the
actual Employee Stock Purchase Plan. The actual Employee Stock Purchase Plan and
additional information concerning the Employee Stock Purchase Plan may be
obtained, upon written or oral request, from
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Packaged Ice, Inc.
attn: Human Resources
3535 Travis Street, Suite 170
Dallas, Texas 75204
Tel: (800) 947-5870
The actual Employee Stock Purchase Plan is also attached as an exhibit to the
registration statement on Form S-8 of which this prospectus is a part.
DESCRIPTION OF THE PLAN
WHO ADMINISTERS THE EMPLOYEE STOCK PURCHASE PLAN?
The Employee Stock Purchase Plan is administered by a committee of
at least three members of our board of directors who have been appointed by the
board and who are "non-employee directors" within the meaning of Rule 16b-3
under Section 16 of the Securities Exchange Act of 1934, as amended. The
committee may select an administrator to whom its duties and responsibilities
hereunder may be delegated. The initial administrator of the Employee Stock
Purchase Plan will be Morgan Stanley Dean Witter. You may contact the
administrator at the following address:
Morgan Stanley Dean Witter
Harborside Financial Center
Plaza 2, 7th Floor
Jersey City, NJ 07311.
After April 3, 2000, a toll free number will be available for contacting the
administrator regarding the Employee Stock Purchase Plan. The committee shall
have full power and authority, subject to the provisions of the Plan, to
promulgate such rules and regulations as it deems necessary for the proper
administration of the Plan, to interpret the provisions and supervise the
administration of the Plan, and to take all action in connection therewith or in
relation thereto as it deems necessary or advisable. Any decision reduced to
writing and signed by a majority of the members of the committee shall be fully
effective as if it had been made at a meeting duly held. Packaged Ice will pay
all expenses incurred in the administration of the Plan. No member of the
committee shall be personally liable for any action, determination, or
interpretation made in good faith with respect to the Plan, and all members of
the committee shall be fully indemnified by Packaged Ice with respect to any
such action, determination or interpretation.
WHO IS ELIGIBLE TO PARTICIPATE IN THE EMPLOYEE STOCK PURCHASE PLAN?
You may be eligible for participation in the Employee Stock Purchase
Plan, if, for tax purposes, you are an employee of Packaged Ice or one of the
subsidiaries designated to
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participate in the plan ("designated subsidiaries") and you are customarily
scheduled to work more than 20 hours per week and you are customarily employed
five months or more in any calendar year.
Notwithstanding the foregoing, you may not be granted an option if,
upon such grant, you would own and/or hold immediately thereafter, by applying
the rules of Section 424(d) of the Code in determining stock ownership shares,
outstanding options to purchase shares possessing five percent (5%) or more of
the total combined voting power or value of all classes of shares of Packaged
Ice.
HOW DO I ENROLL IN THE EMPLOYEE STOCK PURCHASE PLAN?
For purposes of the Employee Stock Purchase Plan and subject to the
discretion of the committee, the "offering period" will be a period of time
commencing on the first business day of each calendar quarter (the "offering
date") and ending on the last business day of such quarter. The initial offering
period ends on March 31, 2000. The next offering period will commence on April
3, 2000 and a new offering period will commence on each offering date thereafter
until the Employee Stock Purchase Plan is terminated through the grant of all
shares under the plan or the earlier termination by the Board of Directors.
If you are an eligible employee prior to an offering date, as
defined below, you may elect to participate in the Employee Stock Purchase Plan
on such date by properly completing an authorization form and submitting it to
the administrator at the address listed above by the deadline to be announced by
Packaged Ice prior to the beginning of the next offering period. IF YOU HAVE
PREVIOUSLY ENROLLED FOR THE FIRST OFFERING PERIOD ENDING ON MARCH 31, 2000, YOU
MAY WITHDRAW YOUR ENROLLMENT AT ANY TIME ON OR PRIOR TO MARCH 31, 2000 BY
CONTACTING THE HUMAN RESOURCES DEPARTMENT OF PACKAGED ICE AT (800) 947-5870.
If you become an eligible employee during an offering period, you
may elect to participate in the next offering period by completing an
authorization form by the deadline to be announced by Packaged Ice prior to the
beginning of the next offering period or it will be effective for the next
following offering period.
You will cease to be eligible to participate in the Employee Stock
Purchase Plan upon the earliest to occur of: (i) the date you are no longer an
eligible employee; (ii) the first day of the offering period following the date
on which you cease to contribute to the Employee Stock Purchase Plan or (iii)
the date on which you withdraw from the Employee Stock Purchase Plan.
HOW DO I MAKE CONTRIBUTIONS TO THE EMPLOYEE STOCK PURCHASE PLAN?
If you elect to participate in the Employee Stock Purchase Plan, you
must submit a proper authorization form instructing Packaged Ice to deduct from
your compensation an amount selected by you, up to any limit imposed by the
committee, that will be used to purchase common stock under the Employee Stock
Purchase Plan. You may increase or decrease such payroll deduction effective as
of the beginning of each offering period, provided you file such request by the
deadline to be announced by Packaged Ice prior to the beginning of the next
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offering period or it will be effective for the next following offering period.
You may also make one lump sum payment into your account per offering period, if
not specifically prohibited by the committee for that offering period, as long
as you have not had the maximum amount withheld during the offering period if
such an amount has been established by the committee.
Packaged Ice will not make any contributions under the Employee
Stock Purchase Plan. All contributions made under the Employee Stock Purchase
Plan may be used by us for any corporate purpose and we will not be obligated to
segregate such contributions. You will not be permitted to purchase more than
$25,000 worth of shares during any year.
The committee will maintain an account for you in the Employee Stock
Purchase Plan and credit your contributions to such account. Amounts held in
your account will not earn interest.
WHICH SHARES ARE SUBJECT TO THE EMPLOYEE STOCK PURCHASE PLAN?
The aggregate number of shares of common stock which may be acquired
upon the exercise of options under the Employee Stock Purchase Plan will not
exceed 250,000, subject to adjustment in certain circumstances. The source of
shares subject to options may be treasury, open market purchase, or new issue.
HOW MANY OPTIONS WILL I BE GRANTED AND WHEN WILL THEY BE EXERCISABLE?
On each offering date, we will grant you an option to purchase the
maximum number of full shares of common stock equal to the amount you have
contributed to the Employee Stock Purchase Plan during the offering period (plus
any dividends paid on such shares held in your account) divided by 85% of the
lower of (i) the fair market value of a share of common stock on the offering
date or (ii) the fair market value of a share of common stock on the exercise
date. For example, assume that the offering period is April 3, 2000 to June 30,
2000. The fair market value of a share of Company common stock on the offering
date (April 3, 2000) is $5.00 and the fair market value of a share of Company
common stock on the exercise date (June 30, 1999) is $6.00. Eighty-five percent
of $5.00 is $4.25 and 85% of $6.00 is $5.10. The purchase price of the shares in
this offering would be the lower of these amounts or $4.25. Therefore, if you
had accumulated $850 in your account during the offering period, you would
purchase 200 shares on the exercise date ($850 / $4.25 = 200).
If the total number of shares which would otherwise be subject to
options granted under the Employee Stock Purchase Plan on an offering date
exceeds the number of shares available under the Employee Stock Purchase Plan,
the committee will make a pro rata allocation of the remaining shares available
for grant in as uniform a manner as is practicable and as the committee
determines to be equitable. In such event, the committee will provide you with
written notice of such reduction of the number of option shares affected thereby
and will reduce the rate of payroll deductions, if necessary.
For purposes of the Employee Stock Purchase Plan, "fair market
value" as of a particular date means (i) the last reported sale price (on that
date) of the common stock on the
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Nasdaq National Market or such other established stock exchange or national
market system on which the common stock is listed; or (ii) if the common stock
is regularly quoted by a recognized securities dealer but selling prices are not
reported, its fair market value shall be the mean of the closing bid and asked
prices for the common stock on the date of such determination, as reported in
the Wall Street Journal or such other source as the Board deems reliable; or
(iii) in the absence of an established market for the common stock, the fair
market value thereof shall be determined in good faith by the Board.
For purposes of the Employee Stock Purchase Plan, "exercise date,"
or the date on which options issued under the Employee Stock Purchase Plan will
be exercised, means the last business day prior to the next offering date in
which payroll deductions are made under the Plan.
WHEN CAN I SELL MY COMMON STOCK?
All common stock purchased upon exercise of an option will be
registered in your name or, at your election, in your name and that of another
person as joint tenants with rights of survivorship. Shares of common stock
received upon a stock dividend or stock-split will be treated as having been
purchased on the exercise date of the shares of common stock to which they
relate. All such common stock will remain in your account until such time as you
request a voluntary withdrawal. As promptly as practicable after receipt by the
committee of a written request from you for withdrawal of common stock, Packaged
Ice shall arrange the delivery to you of a stock certificate representing the
shares of common stock which you wish to withdraw. Withdrawals may be made no
more frequently than once each plan year unless approved by the committee in its
sole discretion. You can sell your stock at any time; however, the tax
consequences, as discussed below, will vary depending on when you sell your
stock.
WHEN CAN I WITHDRAW FROM THE EMPLOYEE STOCK PURCHASE PLAN?
You may withdraw all, but not less than all, of the payroll
deductions, cash dividends and lump-sum payment amounts credited to your account
(that have not been used to purchase shares of common stock) under the Employee
Stock Purchase Plan at any time by giving written notice to Packaged Ice that is
received prior to the exercise date. All such amounts credited to your account
will be paid to you promptly after receipt of your notice of withdrawal and your
option for the offering period in which the withdrawal occurs will be
automatically terminated. No further payroll deductions for the purchase of
shares of common stock will be made for you during that offering period, any
additional cash dividends during that offering period will be distributed to
you, and no further lump-sum payments for that offering period will be accepted.
If you withdraw from an offering period, payroll deductions will not resume at
the beginning of the next offering period unless you deliver to Packaged Ice a
new authorization form. Your withdrawal from an offering period will not have
any effect upon you eligibility to participate in a succeeding offering period
or in any similar plan which may later be adopted by Packaged Ice.
WHAT HAPPENS UPON A TERMINATION OF EMPLOYMENT?
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Upon a termination of employment for any reason, all payroll
deductions, cash dividends and any lump-sum payment credited to your account
that have not been used to purchase shares of common stock will be returned (and
any future cash dividends will be distributed) to you or, in the case of your
death, to the person or persons entitled to them pursuant to your beneficiary
designation, and in the absence of such designation, to the executor or
administrator or your estate, or if there is no executor or administrator, to
your spouse or to any one or more of your dependents or relatives, and your
option will be automatically terminated.
Your status as an employee is not considered terminated in the case
of a leave of absence agreed to in writing by Packaged Ice (including, but not
limited to, military and sick leave), provided that such leave is for a period
of not more than ninety days or re-employment is guaranteed by contract or
statute after such period.
WILL I RECEIVE ANY NOTICES?
The Administrator will distribute to participants a quarterly
statement detailing the number of shares such participant has purchased under
the Employee Stock Purchase Plan and the price at which such shares have been
purchased.
WILL I BE ABLE TO VOTE MY SHARES?
Common stock held for your account is voted as you direct.
CAN THE EMPLOYEE STOCK PURCHASE PLAN BE AMENDED OR TERMINATED?
The Employee Stock Purchase Plan may be terminated or amended at any
time by our board of directors. Except as described in "Will Awards be Adjusted
for Certain Corporate Events?," no such termination can adversely affect options
previously granted and no such amendment can make any change to an option
granted which adversely affects your rights. If stockholder approval is required
to comply with any law, regulation or stock exchange rule, no amendment will be
effective unless approved by our stockholders.
WILL AWARDS BE ADJUSTED FOR CERTAIN CORPORATE EVENTS?
In the event of any increase, reduction, change or exchange of
shares of common stock for a different number or kind of our shares or other
securities by reason of a reclassification, recapitalization, merger,
consolidation, reorganization, stock dividend, stock split or reverse stock
split, combination or exchange of shares, repurchase of shares, change in
corporate structure, distribution of an extraordinary dividend or otherwise, the
committee will conclusively determine the appropriate equitable adjustments, if
any, to be made under the Employee Stock Purchase Plan, including without
limitation adjustments to the number of shares of common stock which have been
authorized for issuance under the Employee Stock Purchase Plan but have not yet
been placed under option, as well as the price per share of common stock covered
by each option under the Employee Stock Purchase Plan which has not yet been
exercised.
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ARE AWARDS TRANSFERABLE?
Neither any payroll deduction credited to your account nor any
rights with regard to the exercise of any option or to receive common stock
under the Employee Stock Purchase Plan may be assigned, transferred, pledged or
otherwise disposed of in any way except by will or by the laws of descent and
distribution. Any such attempt will be without effect, except that we may treat
such act as an election to withdraw from the Employee Stock Purchase Plan.
GOVERNMENTAL REGULATIONS
Our obligation to sell or deliver shares of common stock with
respect to options granted under the Employee Stock Purchase Plan will be
subject to all applicable laws, rules and regulations, including all applicable
Federal and state securities laws, and the obtaining of all approvals by
governmental agencies as may be deemed necessary or appropriate by the
committee.
HOW WILL TAX WITHHOLDING WORK UPON EXERCISE?
No federal income tax is due to be withheld or paid upon the
exercise of an option under this plan.
TAX CONSEQUENCES
The federal tax consequences of participating in the Employee Stock
Purchase Plan are described below, and are based on an analysis of the current
provisions of the Internal Revenue Code and the regulations promulgated
thereunder, all of which are subject to change. The discussion addresses only
federal income tax consequences to you as a citizen or resident of the United
States for federal income tax purposes. You may also be subject to local taxes
in the jurisdiction in which you work and/or reside. IF YOU CHOOSE TO
PARTICIPATE IN THE EMPLOYEE STOCK PURCHASE PLAN, YOU SHOULD CONSULT YOUR
PERSONAL TAX ADVISOR TO DETERMINE THE IMPACT OF FEDERAL AND LOCAL TAXES WITH
RESPECT TO YOUR PARTICIPATION IN THE EMPLOYEE STOCK PURCHASE PLAN.
The Employee Stock Purchase Plan is not qualified under Section
401(a) of the Internal Revenue Code.
The options granted under the Employee Stock Purchase Plan are
intended to be statutory stock options under Section 423 of the Internal Revenue
Code. The tax treatment of the shares you purchase under your options will
depend on how long you hold the shares after purchase as described below. There
will be no tax due on the exercise date upon purchase of your shares under this
plan.
If you hold stock for more than one year after the exercise date AND
for more than two years after the offering date, or if you die while owning the
shares, you will realize ordinary income on a sale (or a disposition by way of
gift or upon death) to the extent of the lesser of: (1) 15% of the fair market
value of the stock on the offering date (or the purchase price discount if
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the purchase price is based solely on the exercise date fair market value); or
(2) the actual gain (the amount by which the fair market value of the shares on
the date of sale, gift or death, exceeds the purchase price). All additional
gain upon the sale of stock is treated as long-term capital gain. If the stock
is sold and the sale price is less than the purchase price, there is no ordinary
income, and you will have a long-term capital loss for the difference between
the sale price and the purchase price. Ordinary income recognized by you upon a
qualifying disposition constitutes taxable compensation. Packaged Ice is not
entitled to a tax deduction for the amount of such income.
If you sell the stock or otherwise dispose of it, including by way
of gift (but not death, bequest or inheritance), within either the one-year or
two-year holding periods discussed above (in either case, a "disqualifying
disposition"), you will realize ordinary income at the time of sale or other
disposition taxable to the extent that the fair market value of the stock on the
exercise date was greater than the purchase price. This excess will constitute
ordinary income in the year of sale or other disposition even if no gain is
realized on the sale or if a gratuitous transfer is made. The difference, if
any, between the proceeds of sale and the fair market value of the stock at the
date of purchase is a capital gain or loss (which is long-term if the stock has
been held more than one year). Ordinary income recognized by you upon a
disqualifying disposition constitutes taxable compensation.
The following example illustrates the general tax rules described
above:
On April 3, 2000, when the price of a share of Packaged Ice common
stock is $5, Packaged Ice grants options to its eligible employees to purchase
the stock at 85% of its fair market value ($4.25). You exercise the option at
the end of the offering period (June 30, 2000) when a share of Packaged Ice
company stock has a fair market value of $6.
IF THE HOLDING PERIOD IS SATISFIED: You sell the stock on April 4,
2002, for $8: You recognized no income at grant or exercise, but at the time of
sale you will recognize income of $.75 per share (i.e., the discount at grant).
You will also recognize long-term capital gain equal to $3.00 per share.
(Alternatively, if you sell the stock for $4.80, you will have only $.55 per
share of ordinary income and no capital gain).
IF THE HOLDING PERIOD IS NOT SATISFIED: If you dispose of the stock
for $8 per share on April 3, 2001, then you will recognize $1.75 per share in
ordinary income (i.e., the difference between the fair market value at exercise
and the per share option price). In addition, you will recognize short-term
capital gain of $2.00 per share. (Alternatively, if you sell the shares for
$4.80, you will still recognize ordinary income equal to $1.75 per share and
also recognize a short term capital loss equal to $1.20 per share, i.e., $4.25
purchase price + $1.75 income recognized.)
Subject to the limitations of ss.162(m) of the Code, Packaged Ice
will receive a deduction for federal income tax purposes to the extent that a
participant realizes ordinary income on a disqualifying disposition. Packaged
Ice will not receive a deduction if you meet the holding period requirements
discussed above.
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In general, you will recognize ordinary income upon the payment of
dividends with respect to shares of common stock issued under this Employee
Stock Purchase Plan whether or not such shares are held in your account or held
by you outside the Employee Stock Purchase Plan.
REOFFERS AND RESALES
If you are our "affiliate" as that term is defined under Rule 144
under the Securities Act, any shares of common stock acquired by you under the
Employee Stock Purchase Plan will be subject to the restrictions on resale set
forth in Rule 144 under the Securities Act. The certificate(s) representing such
share(s) may bear a legend indicating that the transfer of such shares is
restricted. If you are an affiliate, you may not rely on this information
statement in connection with any reoffer or resale of shares of common stock
acquired under the Employee Stock Purchase Plan. However, as an affiliate, you
may resell the shares of common stock acquired under the Employee Stock Purchase
Plan pursuant to (1) the applicable provisions of Rule 144 (without regard to
the applicable holding period requirement), (2) any other applicable exemption
from the registration requirements of the Securities Act, or (3) a registration
statement with respect to such shares under the Securities Act. Generally, if
you are not our affiliate, you may freely sell the shares of common stock
acquired under the Employee Stock Purchase Plan without regard to the
requirements of Rule 144 or the registration requirements of the Securities Act.
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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 document we file at the Commission's public reference rooms in
Washington, D.C., New York, and Chicago. Please call the Commission at
1-800-SEC-0330 for further information on the public reference rooms. Our
Commission filings are also available to the public at the Commission's web site
at HTTP://WWW.SEC.GOV.
The Commission allows us to "incorporate by reference" the
information we file with them which means that we can disclose important
information to you by referring you to those documents instead of having to
repeat the information in this information statement. The information
incorporated by reference is considered to be part of this information
statement, and later information that we file with the Commission will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings made with the Commission under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as
amended until all the shares covered by this information statement are sold.
(a) Packaged Ice's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999; and
(b) The description of Packaged Ice's common stock contained in Packaged
Ice's Form 8-A for registration of securities pursuant to Section
12(b) of the Securities Exchange Act of 1934, as amended, filed on
September 1, 1998 and effective on January 27, 1999, file number
0-24851.
You can request a copy of these filings, at no cost, by writing or
calling us at the following address:
Packaged Ice, Inc.
Attn: Investor Relations
8572 Katy Freeway, Suite 101
Houston, Texas 77024
Tel: (713) 464-9384
You should rely only on the information contained in this
information statement or any supplement and in the documents incorporated by
reference. We have not authorized anyone else to provide you with different
information. You should not assume that the information in this information
statement or any supplement or in the documents incorporated by reference is
accurate on any date other than the date on the front of those documents.
This information statement is part of a registration statement we
filed with the Commission. More information about the shares to be issued or
reserved for issuance in
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connection with the Employee Stock Purchase Plan is contained in that
registration statement and the exhibits filed along with the registration
statement. Because information about contracts referred to in this information
statement is not always complete, you should read the full contracts which are
filed as exhibits to the registration statement. You may read and copy the full
registration statement and its exhibits at the Commission's public reference
rooms or their web site.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by Packaged Ice with the
Commission, are incorporated by reference into this registration statement:
o Packaged Ice's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999; and
o The description of Packaged Ice's common stock contained in Packaged
Ice's Form 8-A for registration of securities pursuant to Section 12(b)
of the Securities Exchange Act of 1934, as amended, filed on September
1, 1998 and effective on January 27, 1999, file number 0-24851.
In addition, all documents subsequently filed by Packaged Ice pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this registration statement which indicate that all
shares covered hereby have been sold or which deregister all such securities
then remaining unsold shall be deemed to be incorporated by reference into this
registration statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein modifies or supersedes such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Akin, Gump, Strauss, Hauer & Feld, L.L.P. has served as counsel to
Packaged Ice. Messrs. Cecil Schenker and Alan Schoenbaum, partners at Akin Gump,
own 4,000 shares and 2,500 shares of Common Stock, respectively.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Article 2.02-1 of the Texas Business Corporation Act (the
"Act") and subject to the procedures and limitations therein, Packaged Ice MAY
indemnify any person who was, is or is threatened to be made a named defendant
or respondent in a proceeding because he or she is or was a director or officer,
against judgments, penalties (including excise and
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similar taxes), fines, settlements and reasonable expenses (including court
costs and attorneys' fees) which are incurred by that person in connection with
the proceeding. Such indemnification is permissible only if it is determined the
person (i) conducted himself or herself in good faith, (ii) reasonably believed,
in the case of conduct in his or her official capacity as a director of the
corporation, that his or her conduct was in Packaged Ice's best interests, and
in all other cases, that his or her conduct was not opposed to Packaged Ice's
best interests, and (iii) in the case of any criminal proceeding, had no
reasonable cause to believe that his or her conduct was unlawful. If a director
or officer is made a named defendant or respondent in a proceeding because he or
she is or was a director or officer, and if that person has been wholly
successful, on the merits or otherwise, in the defense of the proceeding, then
Article 2.02-1 REQUIRES Packaged Ice to indemnify him or her against reasonable
expenses (including court costs and attorneys' fees) incurred by him or her in
connection with the proceeding.
The Act 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 of Incorporation and the Bylaws of Packaged Ice provide
for the indemnification by Packaged Ice of its directors and officers to the
fullest extent permitted by the Act. In addition, as permitted by Article
1302-7.06 of the Texas Miscellaneous Corporation Laws Act, Packaged Ice has
provided in its Articles of Incorporation that a director of Packaged Ice shall
not be liable to Packaged Ice or its shareholders or members for monetary
damages for an act or omission in a director's capacity as director of Packaged
Ice.
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 any of these individuals against
certain liabilities (including settlements) and expenses actually and reasonably
incurred by them in connection with any threatened or pending legal actions,
proceedings or investigations (other than actions brought by or on behalf of
Packaged Ice) to which any of them is, or is threatened to be, made a party by
reason of his or her status as a director, officer or agent of Packaged Ice;
PROVIDED that (i) 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 (ii) with respect to any criminal proceeding, he
or she had no reasonable cause to believe that his or her conduct was unlawful.
With respect to any action brought by or on behalf of Packaged Ice, the
agreements provide that any such individual 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 him or her in
connection with the action, if he or she acted in good faith and in a manner
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 they provide for partial indemnification in the case of any
partially successful defense.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Articles of Incorporation of Packaged Ice (incorporated by
reference from Exhibit 3.2 to the Registration Statement on Form S-4, File
Number 333-29375, filed with the Commission on June 16, 1997).
4.2 Articles of Amendment to the Restated Articles of Incorporation of
Packaged Ice (incorporated by reference from Exhibit 3.2 to Packaged Ice's
Registration Statement on Form S-1, File Number 333-60627, filed with the
Commission on August 4, 1998).
4.3 Amended and Restated Bylaws of Packaged Ice (incorporated by reference
from Exhibit 3.5 to Packaged Ice's Registration Statement on Form S-4, File
Number 333-29375, filed with the Commission on June 16, 1997).
4.4 2000 Employee Stock Purchase Plan, dated effective as of January 1,
2000.
4.5 Form of Stock Certificate of Common Stock of Packaged Ice
(incorporated by reference from Exhibit 4.18 to Packaged Ice's Registration
Statement on Form S-1, File Number 333-60627, filed with the Commission on
August 4, 1998).
5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. as to the
legality of the shares being issued.
10.1 Authorization Form for enrolling in the Employee Stock Purchase Plan.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in
Exhibit 5.1).
24.1 Power of Attorney (included in signature pages attached hereto).
ITEM 9. 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;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which,
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<PAGE>
individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement. 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 which the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(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.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities being offered therein, and the
offering of such securities at that 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act, and each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act, 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.
Insofar as indemnification for liabilities arising under the Securities
Act 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 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Packaged Ice certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Houston, Texas, on March 28, 2000.
PACKAGED ICE, INC.
By: /s/ JAMES F. STUART
--------------------
James F. Stuart
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints James F. Stuart and James C.
Hazlewood, with full power to act, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in all capacities, to sign any and all amendments
(including, without limitation, post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each said attorney-in-fact and
agent or any of them, or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on March 28, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------- -----
<S> <C>
/S/ JAMES F. STUART
- ---------------------
James F. Stuart Chief Executive Officer and Director (Principal Executive Officer)
/S/ A.J. LEWIS III
- --------------------
A.J. Lewis III President and Director
/S/ JAMES C. HAZLEWOOD
- -------------------------
James C. Hazlewood Chief Financial Officer (Principal Accounting and Financial Officer)
/S/ RICHARD A. COONROD
- ------------------------
Richard A. Coonrod Director
/S/ ROBERT G. MILLER
- --------------------
Robert G. Miller Director
/S/ STEVEN P. ROSENBERG
- ------------------------
Steven P. Rosenberg Director
/S/ DAVID J. LOSITO
- --------------------
David J. Losito Director
</TABLE>
16
EXHIBIT 4.4
PACKAGED ICE, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The purpose of the Packaged Ice, Inc. 2000 Employee
Stock Purchase Plan (the "Plan") is to provide Employees of Packaged Ice, Inc.
(the "Company") and its Designated Subsidiaries with an opportunity to acquire
an interest in the Company through the purchase of common stock of the Company,
$.01 par value per share (the "Common Stock"), with accumulated payroll
deductions. The Company intends the Plan to qualify as an "employee stock
purchase plan" within the meaning of Section 423 of the Internal Revenue Code of
1986, as amended (the "Code"), and the provisions of the Plan shall be construed
in a manner consistent with the requirements of Section 423 of the Code.
2. DEFINITIONS.
a. "Authorization Form" shall mean a form supplied by and
delivered to the Company by a Participant in the form of Attachment A hereto
authorizing payroll deductions as set forth in Section 5 hereof and such other
terms and conditions as the Company from time to time may determine.
b. "Board" shall mean the Board of Directors of the Company.
c. "Committee" shall mean a committee of at least three
members of the Board appointed by the Board to administer the Plan and to
perform the functions set forth herein and who are "non-employee directors"
within the meaning of Rule 16b-3 as promulgated under Section 16 of the
Securities Exchange Act of 1934 (the "Exchange Act").
d. "Company" shall mean Packaged Ice, Inc. and any Designated
Subsidiary.
e. "Compensation" shall mean gross compensation for the
relevant pay period, including overtime pay, but excluding all bonuses,
severance pay, any extraordinary pay, expense allowances/reimbursements, moving
expenses and income from restricted stock or stock option awards. For these
purposes, gross compensation includes any amount that would be included in
taxable income but for the fact that it was contributed to a qualified plan
pursuant to an elective deferral under Section 401(k) of the Code or contributed
under a salary reduction agreement pursuant to Section 125 of the Code.
f. "Designated Subsidiary" shall mean any Subsidiary
designated by the Board from time to time, in its sole discretion, as eligible
to participate in the Plan.
g. "Eligible Employee", shall mean any Employee excluding: (i)
any Employee who is customarily scheduled to work 20 hours per week or less, and
(ii) any Employee who customarily is employed for not more than five (5) months
in any calendar year.
h. "Employee" shall mean any person, including an officer,
who, for tax purposes, is an employee of the Company or one of its Designated
Subsidiaries.
<PAGE>
i. "Exercise Date" shall mean, with respect to each Offering
Period, the last business day prior to the next Offering Date in which payroll
deductions are made under the Plan.
j. "Fair Market Value" per share as of a particular date shall
mean: (i) the last reported sale price (on that date) of the Common Stock on the
NASDAQ Stock Market or such other established stock exchange or national market
system on which the Common Stock is listed; or (ii) if the Common Stock is
regularly quoted by a recognized securities dealer but selling prices are not
reported, its Fair Market Value shall be the mean of the closing bid and asked
prices for the Common Stock on the date of such determination, as reported in
the Wall Street Journal or such other source as the Board deems reliable; or
(iii) in the absence of an established market for the Common Stock, the Fair
Market Value thereof shall be determined in good faith by the Board.
k. "Offering Date" shall mean the first business day of
January, April, July and October of each Plan Year, PROVIDED that the Committee
shall have the power to change the Offering Date.
l. "Offering Period" shall mean a period of time during the
effectiveness of the Plan, commencing on each Offering Date and ending on the
Exercise Date thereof.
m. "Participant" shall mean an Employee who participates in
the Plan.
n. "Plan Year" shall mean the period beginning on January 1,
2000 and ending on December 31, 2000 and each calendar year thereafter.
o. "Subsidiary" shall mean any corporation, if any, having the
relationship to the Company described in Section 424(f) of the Code.
3. ELIGIBILITY AND PARTICIPATION.
a. Any person who is an Eligible Employee on an Offering Date
shall be eligible to become a Participant in the Plan beginning on that Offering
Date and shall become a Participant as of that Offering Date by completing an
Authorization Form and filing it with the Company by the date required by the
Company. Such authorization will remain in effect for subsequent Offering
Periods, until modified or terminated by the Participant.
b. Any person who first becomes an Eligible Employee during an
Offering Period shall be eligible to become a Participant in the Plan as of the
first day of the Offering Period beginning after the date on which that person
became an Eligible Employee and shall become a Participant as of such date by
completing an Authorization Form and filing it with the Company by the date
required by the Company. Such authorization will remain in effect for subsequent
Offering Periods, until modified or terminated by the Participant.
c. A person shall cease to be a Participant upon the earliest
to occur of:
i) the date the Participant ceases to be an Eligible Employee,
for any reason;
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ii) the first day of the Offering Period beginning after the
date on which the Participant ceases payroll deductions under the Plan; or
iii) the date of a withdrawal from the Plan by the
Participant.
4. GRANT OF OPTION.
a. On each Offering Date the Company shall grant each Eligible
Employee an option to purchase shares of Common Stock, subject to the
limitations set forth in Sections 3.b, 3.c and 10 hereof.
b. The option price per share of the Common Stock subject to
an offering shall be the lesser of: (i) eighty-five percent (85%) of the Fair
Market Value of a share of Common Stock on the Offering Date or (ii) eighty-five
percent (85%) of the Fair Market Value of a share of Common Stock on the
Exercise Date.
c. No Participant shall be granted an option which permits his
rights to purchase Common Stock under all employee stock purchase plans of the
Company to accrue at a rate which exceeds $25,000 of the Fair Market Value of
the Common Stock (determined at the time the option is granted) for each
calendar year in which such stock option is outstanding at any time.
d. No Participant may be granted an option if, upon such
grant, such Participant would own immediately after the grant of an option under
the Plan and applying the rules of Section 424(d) of the Code in determining
stock ownership shares, and/or hold outstanding options to purchase shares,
possessing five percent (5%) or more of the total combined voting power or value
of all classes of shares of the Company.
5. PAYROLL DEDUCTIONS AND LUMP SUM PAYMENTS.
a. An Eligible Employee may become a Participant in the Plan
through payroll deduction on an Offering Date by delivering an Authorization
Form to the Company within the time specified in rules adopted by the Committee.
Each such Authorization Form shall authorize payroll deductions of up to the
maximum amount or percentage of Compensation specified by the Committee (if any
such maximum amount or percentage of Compensation is lower than the amount
established by operation of section 4(c) hereof) of such Employee's Compensation
during the Offering. Payroll deductions shall not be less than five dollars for
Employees paid on a weekly basis nor less than ten dollars for Employees paid on
a bi-weekly basis. A Participant may increase or decrease such payroll deduction
(including a cessation of payroll deductions) effective as of the start of the
next Offering Period, provided the Participant files with the Company the
Authorization Form requesting such change by the date required by the Company.
An Eligible Employee may also become a Participant for an Offering Period by
making one lump sum payment into his or her account if lump sum payments are not
specifically prohibited by the Committee for such Offering Period. Such a
lump-sum amount shall be due by the date prescribed by the Committee and shall
not exceed any maximum amount established by the Committee. Participants who
have enrolled through an Authorization Form may also make one lump sum payment
per Offering Period by the date prescribed by the Committee as long as they have
not already reached the maximum amount permitted for such Offering Period.
3
<PAGE>
b. All payroll deductions and lump-sum payments (if any) made
by a Participant shall be credited to such Participant's account under the Plan.
6. EXERCISE OF OPTION.
a. Unless a Participant withdraws from the Plan as provided in
Section 8 hereof, such Participant's election to purchase shares will be
exercised automatically on the Exercise Date, and the maximum number of full
shares subject to such option will be purchased for such Participant at the
applicable option price with the accumulated payroll deductions, cash dividends
(credited pursuant to Section 9 hereof) and lump-sum payment amount in such
Participant's account. During a Participant's lifetime, his or her option to
purchase shares hereunder is exercisable only by such Participant.
b. Any cash balance remaining in a Participant's account after
the termination of an Offering Period will be carried forward to the
Participant's account for the purchase of Common Stock during the next Offering
Period if the Participant has elected to continue to participate in the Plan.
Otherwise the Participant will receive a cash payment equal to the balance of
his or her account as soon as administratively feasible.
c. The shares of Common Stock purchased upon exercise of an
option hereunder shall be credited to the Participant's account under the Plan
and shall be deemed to be transferred to the Participant on the Exercise Date
and, except as otherwise provided herein, the Participant shall have all rights
of a stockholder with respect to such shares.
7. DELIVERY OF COMMON STOCK. As promptly as practicable after
receipt by the Committee of a written request for withdrawal of Common Stock
from any Participant, the Company shall arrange the delivery to such Participant
of a stock certificate representing the shares of Common Stock which the
Participant requests to withdraw. Withdrawals may be made no more frequently
than once each Plan Year unless approved by the Committee in its sole
discretion. Shares of Common Stock received upon stock dividends or stock splits
shall be treated as having been purchased on the Exercise Date of the shares to
which they relate.
8. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
a. A Participant may withdraw all, but not less than all, of
the payroll deductions, cash dividends and lump-sum payment amount credited to
such Participant's account (that have not been used to purchase shares of Common
Stock) under the Plan at any time by giving written notice to the Company
received prior to the Exercise Date. All such amounts credited to such
Participant's account will be paid to such Participant promptly after receipt of
such Participant's notice of withdrawal and such Participant's option for the
Offering Period in which the withdrawal occurs will be automatically terminated.
No further payroll deductions for the purchase of shares of Common Stock will be
made for such Participant during such Offering Period, any additional cash
dividends during the Offering Period will be distributed to the Participant, and
no further lump-sum payments for such Offering Period will be accepted. If a
Participant withdraws from an Offering Period, payroll deductions shall not
resume at the beginning of the succeeding Offering Period unless the Participant
delivers to the Company a new Authorization Form.
4
<PAGE>
b. A Participant's withdrawal from an Offering Period will not
have any effect upon such Participant's eligibility to participate in a
succeeding Offering Period or in any similar plan which may hereafter be adopted
by the Company.
c. Upon termination of a Participant's status as an Employee
during the Offering Period for any reason, including voluntary or involuntary
termination, retirement or death, the payroll deductions, cash dividends and any
lump-sum payment credited to such Participant's account that have not been used
to purchase shares of Common Stock will be returned (and any future cash
dividends will be distributed) to such Participant or, in the case of such
Participant's death, to the person or persons entitled thereto under Section 12
hereof, and such Participant's option will be automatically terminated. A
Participant's status as an Employee shall not be considered terminated in the
case of a leave of absence agreed to in writing by the Company (including, but
not limited to, military and sick leave), PROVIDED that such leave is for a
period of not more than ninety (90) days or reemployment upon expiration of such
leave is guaranteed by contract or statute.
9. DIVIDENDS.
a. Cash dividends paid on Common Stock held in a Participant's
account shall be credited to such Participant's account and used in addition to
payroll deductions and lump-sum payments to purchase shares of Common Stock on
the Exercise Date. Dividends paid in Common Stock or stock splits of the Common
Stock shall be credited to the accounts of Participants. Dividends paid in
property other than cash or Common Stock shall be distributed to Participants as
soon as practicable.
b. No interest shall accrue on or be payable with respect to
the payroll deductions or credited cash dividends of a Participant in the Plan.
10. STOCK.
a. The maximum number of shares of Common Stock which shall be
reserved for sale under the Plan shall be 250,000, subject to adjustment upon
the occurrence of an event as provided in Section 15 hereof. If the total number
of shares which would otherwise be subject to options granted pursuant to
Section 4.a. hereof on an Offering Date exceeds the number of shares then
available under the Plan (after deduction of all shares for which options have
been exercised or are then outstanding), the Committee shall make a pro rata
allocation of the shares remaining available for option grant in as uniform a
manner as shall be practicable and as it shall determine to be equitable. In
such event, the Committee shall give written notice to each Participant of such
reduction of the number of option shares affected thereby and shall similarly
reduce the rate of payroll deductions, if necessary. The source of shares may be
treasury, open market purchase, or new issue.
b. Shares of Common Stock to be delivered to a Participant
under the Plan will be registered in the name of the Participant or, at the
election of the Participant, in the name of the Participant and another person
as joint tenants with rights of survivorship.
11. ADMINISTRATION. The Plan shall be administered by the Committee,
and the Committee may select an administrator to whom its duties and
responsibilities hereunder may be
5
<PAGE>
delegated. The Committee shall have full power and authority, subject to the
provisions of the Plan, to promulgate such rules and regulations as it deems
necessary for the proper administration of the Plan, to interpret the provisions
and supervise the administration of the Plan, and to take all action in
connection therewith or in relation thereto as it deems necessary or advisable.
Any decision reduced to writing and signed by a majority of the members of the
Committee shall be fully effective as if it had been made at a meeting duly
held. The Company will pay all expenses incurred in the administration of the
Plan. No member of the Committee shall be personally liable for any action,
determination, or interpretation made in good faith with respect to the Plan,
and all members of the Committee shall be fully indemnified by the Company with
respect to any such action, determination or interpretation.
12. DESIGNATION OF BENEFICIARY.
a. A Participant may file, on forms supplied by and delivered
to the Company, a written designation of a beneficiary who is to receive any
shares and cash in the event of the Participant's death.
b. Such designation of beneficiary may be changed by the
Participant at any time by written notice. In the event of the death of a
Participant and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such Participant's death, the Company shall
deliver such shares and/or cash to the executor or administrator of the estate
of the Participant or, if no such executor or administrator has been appointed
(to the knowledge of the Company), the Company, in its discretion, may deliver
such shares and/or cash to the spouse or to any one or more dependents or
relatives of the Participant, or if no spouse, dependent or relative is known to
the Company, then to such other person as the Company may designate.
13. TRANSFERABILITY. Neither amounts credited to a Participant's
account nor any rights with regard to the exercise of an option or to receive
shares under the Plan may be assigned, transferred, pledged or otherwise
disposed of in any way (other than by will, the laws of descent and distribution
or as provided in Section 12 hereof) by the Participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds in
accordance with Section 8 hereof.
14. USE OF FUNDS. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose, and
the Company shall not be obligated to segregate such payroll deductions.
15. EFFECT OF CERTAIN CHANGES. In the event of any increase,
reduction, or change or exchange of shares of Common Stock for a different
number or kind of shares or other securities of the Company by reason of a
reclassification, recapitalization, merger, consolidation, reorganization, stock
dividend, stock split or reverse stock split, combination or exchange of shares,
repurchase of shares, change in corporate structure, distribution of an
extraordinary dividend or otherwise, the Committee shall conclusively determine
the appropriate equitable adjustments, if any, to be made under the Plan,
including without limitation adjustments to the number of shares of Common Stock
which have been authorized for issuance under the Plan but
6
<PAGE>
have not yet been placed under option, as well as the price per share of Common
Stock covered by each option under the Plan which has not yet been exercised.
16. AMENDMENT OR TERMINATION. The Board may at any time terminate or
amend the Plan. Except as provided in Section 15 hereof, no such termination can
adversely affect options previously granted and no amendment may make any change
in any option theretofore granted which adversely affects the rights of any
Participant. No amendment shall be effective unless approved by the stockholders
of the Company if stockholder approval of such amendment is required to comply
with any law, regulation or stock exchange rule.
17. NOTICES. All notices or other communications by a Participant to
the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Company at the location,
or by the person, designated by the Company for the receipt thereof.
18. REGULATIONS AND OTHER APPROVALS; GOVERNING LAW
a. This Plan and the rights of all persons claiming hereunder
shall be construed and determined in accordance with the laws of the State of
Texas applicable to contracts made and to be performed in such State.
b. The obligation of the Company to sell or deliver shares of
Common Stock with respect to options granted under the Plan shall be subject to
all applicable laws, rules and regulations, including all applicable Federal and
state securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
c. The Plan is intended to comply with Rule 16b-3 as
promulgated under Section 16 of the Exchange Act and the Committee shall
interpret and administer the provisions of the Plan in a manner consistent
therewith. Any provisions inconsistent with such Rule shall be inoperative and
shall not affect the validity of the Plan.
19. WITHHOLDING OF TAXES. If the Participant makes a disposition,
within the meaning of Section 424(c) of the Code and regulations promulgated
thereunder, of any share or shares issued to such Participant pursuant to such
Participant's exercise of an option, and such disposition occurs within the
two-year period commencing on the day after the Offering Date or within the
one-year period commencing on the day after the Exercise Date, such Participant
shall, within five (5) days of such disposition, notify the Company thereof and
thereafter immediately deliver to the Company any amount of Federal, state or
local income taxes and other amounts which the Company informs the Participant
the Company is required to withhold.
20. EFFECTIVE DATE; APPROVAL OF STOCKHOLDERS. The Plan is effective
as of January 1, 2000. The Plan shall be submitted to the stockholders of the
Company for their approval within twelve (12) months after the date the Plan is
adopted. The Plan is conditioned upon the approval of the stockholders of the
Company, and failure to receive their approval shall render the Plan and all
outstanding options issued thereunder void and of no effect.
7
EXHIBIT 5.1
[AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. LETTERHEAD]
March 28, 2000
Packaged Ice, Inc.
8572 Katy Freeway, Suite 101
Houston, Texas 77024
Re: Registration Statement on Form S-8
Dear Ladies and Gentlemen:
We have acted as counsel to Packaged Ice, Inc., a Texas corporation (the
"COMPANY"), in the preparation of a Registration Statement on Form S-8 (the
"REGISTRATION STATEMENT") relating to the 2000 Employee Stock Purchase Plan (the
"PLAN"). The Registration Statement, which the Company filed with the Securities
and Exchange Commission, covers an aggregate of 250,000 shares of the Company's
common stock, par value $0.01 per share (the "SHARES"), that are issuable
pursuant to the Plan.
In so acting, we have examined and relied upon such records, documents,
and other instruments as in our judgment are necessary or appropriate in order
to express the opinion hereinafter set forth and have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies.
Based on the foregoing, and subject to the limitations and exceptions set
forth below, we are of the opinion that the Shares, when issued pursuant to and
in accordance with the Plan, will be duly authorized, validly issued, fully paid
and non-assessable.
For the purposes of the opinion expressed above, we have assumed that the
Registration Statement and any amendments thereto will become effective. We
express no opinion other than as to the laws of the State of Texas and the
federal laws of the United States of America.
This opinion is rendered solely for your benefit in connection with the
above matter and may not be relied upon in any manner by any other person or
entity without our express written consent. We hereby consent to the use of this
opinion as an exhibit to the Registration
<PAGE>
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
March 28, 2000
Page 2
Statement. In giving such consent, we do not thereby admit that we are in the
category of person whose consent is required under Section 7 of the Securities
Act of 1933, as amended.
Very truly yours,
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
EXHIBIT 10.1
PACKAGED ICE, INC.
EMPLOYEE STOCK PURCHASE PLAN ENROLLMENT/CHANGE FORM
________________________________________________________________________________
| DEDUCTIONS
[ ] INITIAL DEDUCTION ELECTION |
| [ ] CHANGE [ ] STOP [ ] RE-START
________________________________________________________________________________
________________________________________________________________________________
I. EMPLOYEE INFORMATION
________________________________________________________________________________
Last Name___________________________ First Name_______________________ MI____
Social Security #____________________________ Date of Birth_____/_____/_______
Address_________________________________________________________________________
City______________________ State_________________ Zip Code__________________
Daytime Telephone Number(____)______-_________ Date of Hire_____/_____/_______
Company #________ Location #:________ Pay Frequency: Weekly [ ] Bi-Weekly [ ]
________________________________________________________________________________
II. PAYROLL DEDUCTION CHANGE AUTHORIZATION
________________________________________________________________________________
I authorize Packaged Ice, Inc. to deduct from my pay $_______________ each pay
period (minimum of $5 per weekly period $10 min per bi-weekly period) to be used
for the purchase of Packaged Ice, Inc. Common Stock in accordance with the plan
provisions.
________________________________________________________________________________
III. W-9 CERTIFICATION
________________________________________________________________________________
Under penalties of perjury, I certify that the Social Security number shown on
this form is my correct taxpayer identification number (or I am waiting for a
number to be issued to me.)
________________________________________________________________________________
IV. SIGNATURES
________________________________________________________________________________
I authorize Packaged Ice, Inc. to institute the Investment decision indicated
above. I have received the Plan Prospectus, Plan Document and Summary of Plan
Features. I understand that contributions are after-tax deductions and will not
accrue interest after being deducted for the purchase of Common Stock. I
understand that neither The Packaged Ice, Inc. nor Morgan Stanley Dean Witter,
Plan Administrative Agent, is responsible for prices at which shares are
purchased or for any market value fluctuations subsequent to the purchases. I
further understand that my right to plan participation may not be transferred or
pledged to any other individual.
Employees under the age of 18 must have this Form co-signed by their Parent or
Guardian.
________________________________________________________________________________
Employee Signature Parent/Guardian Signature (if applicable) Date
________________________________________________________________________________
Send Completed Form to: PACKAGED ICE, INC.
HUMAN RESOURCES DEPT.
3535 TRAVIS SUITE 170
DALLAS, TX 75204
________________________________________________________________________________
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Packaged Ice Inc. on Form S-8 of our report dated March 17, 2000 appearing in
the Annual Report on Form 10-K of Packaged Ice, Inc. for the year ended December
31, 1999.
Houston, Texas
March 28, 2000
/s/ DELOITTE & TOUCHE LLP
-------------------------
Deloitte & Touche LLP
