EXHIBIT 4.15
FIRST AMENDMENT TO WARRANT AGREEMENT
This First Amendment to Warrant Agreement (the "Amendment") is made and
entered into as of July 10, 2000, between Packaged Ice, Inc., a Texas
corporation (the "Company") and U.S. Trust Company of Texas, N.A., a national
banking association (the "Warrant Agent"). Capitalized terms used in this
Amendment and not otherwise defined herein shall have the meanings assigned to
them in the Warrant Agreement between the Company and the Warrant Agent dated as
of April 17, 1997 (the "Warrant Agreement")
RECITALS
WHEREAS, the Company and the Warrant Agent are parties to the Warrant
Agreement; and
WHEREAS, the Company and the Warrant Agent desire to amend the Warrant
Agreement so that holders of the Warrants may exercise such warrants in a
cashless exercise; and
WHEREAS, Section 7.01 of the Warrant Agreement allows the parties to amend
the Warrant Agreement without the consent of any holder of any Warranty
Certificate in any manner which the Company may deem necessary or desirable,
provided that the amendment does not adversely affect in any material respect
the interests of the holders of the Warrant Certificates; and
WHEREAS, the changes that the Company desires to make to the Warrant
Agreement provide an additional means for the holders of the Warrants to
exercise such warrants and will not adversely affect in any material respect the
interests of any of the holders of the Warrant Certificates;
NOW, THEREFORE, the parties hereto agree as follows:
A. AMENDMENT TO THE WARRANT AGREEMENT. The Warrant Agreement is hereby
amended as follows:
Article II is hereby amended by adding a new Section 2.04 as follows:
2.04 NET ISSUE EXERCISE. (a) Notwithstanding any provisions herein
to the contrary, if the Current Market Value (determined pursuant to
Section 5.01(e)) of one Share is greater than the Exercise Price (at the
date of calculation as set forth below), in lieu of exercising a Warrant
for cash or by certified or official bank check, the holder may elect to
receive Shares equal to the value (as determined below) of the Warrant in
which event the Company shall issue to the holder of the Warrant a number
of Shares computed using the following formula:
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Y(A - B)
X = --------
A
Where X = the number of Shares to be issued to the holder
Y = the number of Shares purchasable under the Warrant
A = the Current Market Value of one Share on the
Exercise Date (as is defined in Section 2.04(c))
B = Exercise Price (as adjusted to the Exercise Date)
For the purposes of the above calculation, Current Market Value of one
Share shall be determined as provided by Section 5.01(e) of this
Agreement.
(b) Warrants may be exercised on or after the Exercisability Date by
surrendering at any Warrant Exercise Office the Warrant Certificate
evidencing such Warrants with a Cashless Exercise Form substantially in
the form of EXHIBIT D hereto (a "Cashless Exercise") duly completed and
signed by the registered holder or holders thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney.
Each Warrant may be exercised only in whole.
(c) Upon such surrender of a Warrant Certificate at any Warrant
Exercise Office (other than any Warrant Exercise Office that also is an
office of the Warrant Agent), such Warrant Certificate shall be promptly
delivered to the Warrant Agent. When exercised pursuant to this Section
2.04, the "EXERCISE DATE" for a Warrant shall be the date when the items
referred to in the first sentence of paragraph (b) of this Section 2.04
are received by the Warrant Agent at or prior to 2:00 p.m., Dallas, Texas
time, on a Business Day and the exercise of the Warrants will be effective
as of such Exercise Date. If any items referred to in the first sentence
of paragraph (b) are received after 2:00 p.m., Dallas, Texas time, on a
Business Day, the exercise of the Warrants to which such item relates will
be effective on the next succeeding Business Day. Notwithstanding the
foregoing, in the case of an exercise of Warrants on the Expiration Date
(as defined in Section 2.01), if all of the items referred to in the first
sentence of paragraph (b) are received by the Warrant Agent prior to 5:00
p.m., Dallas, Texas time, on such Expiration Date, the exercise of the
Warrants to which such items related will be effective on the Expiration
Date.
(d) Upon the exercise of a Warrant in accordance with the terms
hereof and the receipt of a Warrant Certificate, the Warrant Agent shall,
as soon as practicable, advise the Company in writing of the number of
Warrants (giving effect to Section 5.01(i) below) exercised in accordance
with the terms and conditions of this Agreement and the Warrant
Certificates, the instructions of each exercising holder of the Warrant
Certificates with respect to delivery of the Shares
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to which such holder is entitled upon such exercise, and such other
information as the Company shall reasonably request.
(e) Subject to Section 5.02 hereof, as soon as practicable after the
exercise of any Warrant or Warrants in accordance with the terms hereof,
the Company shall issue or cause to be issued to or upon the written order
of the registered holder of the Warrant Certificate evidencing such
exercised Warrant or Warrants, a certificate or certificates evidencing
the Shares to which such holder is entitled, in fully registered form,
registered in such name or names as may be directed by such holder
pursuant to the Cashless Exercise. The Warrant Agent shall have no
obligation to ascertain the number of Shares to be issued with respect to
the exercised Warrant or Warrants. Such certificate or certificates
evidencing the Shares shall be deemed to have been issued and any persons
who are designated to be named therein shall be deemed to have become the
holder of record of such Shares as of the close of business on the
Exercise Date. After such exercise of any Warrant or Warrants, the Company
shall also issue or cause to be issued to or upon the written order of the
registered holder of such Warrant Certificate, a new Warrant Certificate,
countersigned by the Warrant Agent pursuant to the Company's written
instruction, evidencing the number of Warrants, if any, remaining
unexercised unless such Warrants shall have expired.
B. RATIFICATION. Except as expressly amended hereby all terms and
provisions of the Warrant Agreement, as heretofore amended, remain unamended,
unmodified and in full force and effect. The Warrant Agreement, as amended
hereby, and all rights and powers created thereby, is in all respects ratified
and confirmed. From and after the date hereof, all references to the Warrant
Agreement shall be deemed to mean the Warrant Agreement as amended by this
Amendment.
C. COUNTERPARTS. This Amendment may be executed in counterparts, each of
which, when executed and delivered, shall for all purposes be deemed an
original. All of the counterparts, when taken together, shall constitute but one
and the same Amendment.
D. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflict of laws provisions thereof.
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[SIGNATURE PAGE TO FIRST AMENDMENT TO WARRANT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Warrant Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
PACKAGED ICE, INC.
By:_____________________________
Name:
Title:
U.S. TRUST COMPANY OF TEXAS, N.A.
as Warrant Agent
By:_____________________________
Name:
Title:
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EXHIBIT D
(CASHLESS EXERCISE FORM)
(To be executed upon exercise of Warrants on the Exercise Date)
The undersigned hereby irrevocably elects to exercise ________________ of
the Warrants for such number of Shares set forth on the calculation attached
hereto pursuant to the Cashless Exercise provisions of Section 2.04 of the
Warrant Agreement, dated as of April 17, 1997, between Packaged Ice, Inc. and
U.S. Trust Company of Texas, N.A. The undersigned requests that a certificate
representing such Shares be registered in the name of ____________ whose address
is ______________________________ and that such certificate be delivered to
whose address is ______________________________. Any cash payments to be paid in
lieu of a fractional Share should be made to ________________________ whose
address is __________________________________ and the check representing payment
thereof should be delivered to _________________ whose address is
_____________________________________.
Dated __________________, 2000
Name of holder of
Warrant Certificate: ____________________________
(Please Print)
Tax Identification or
Social Security Number: ____________________________
Address: ____________________________
____________________________
____________________________
____________________________
Signature: ____________________________________________
Note: The above signature must correspond
with the name as written upon the face of
this Warrant Certificate in every
particular, without alternation or
enlargement or any change whatever
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Calculation of Cashless Exercise
Current Market Value of one Share: $___________ = A
Exercise Price, as adjusted: $___________ = B
A - B = __________ = C
Number of Shares purchasable under the Warrant or Warrants, as adjusted:
__________________= Y
Number of Shares to be issued = (__________ x __________) / __________
(Insert Y) (Insert C) (Insert A)
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