EMPLOYMENT AGREEMENT
AGREEMENT entered into effective as of the 16th day of
October, 1996, by and between NUCO2 INC., a Florida corporation having its
principal office at 0000 X.X. Xxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000 (hereinafter
referred to as the "Corporation"), and XXXXX XXXXXXXX, residing at 00 Xxxxx Xxxx
Xxxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter referred to as the "Employee").
W I T N E S S E T H:
WHEREAS, the Corporation desires to employ the Employee and
the Employee desires to be employed by the Corporation upon the terms and
subject to the conditions hereinafter set forth,
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and for other good and valuable consideration, it is agreed as
follows:
1. (a) The Corporation hereby employs the Employee
and the Employee agrees to work for the Corporation as its Chief Financial
Officer. The Employee shall serve as and perform the duties of Chief Financial
Officer of the Corporation during the term of this Agreement.
(b) The Employee shall serve as a member or ex-
officio member of such of the Corporation's committees as the Board of Directors
of the Corporation shall designate.
(c) The Employee agrees to devote her full
business time during regular business hours to working for the Corporation and
performing the aforesaid duties and such other duties as shall from time to time
be assigned to her by the Board of Directors of
the Corporation consistent with her position as Chief Financial Officer. During
the term of her employment hereunder, the Employee shall have no interest in, or
perform any services during regular business hours for any other company,
whether or not such company is competitive with the Corporation, except that (i)
this prohibition shall not be deemed to apply to passive investments in
businesses not competitive with the business of the Corporation or to
investments of 5% or less of the outstanding stock of public companies whose
stock is traded on a national securities exchange or in the over-the-counter
market and (ii) until January 31, 1997, the Employee may provide consulting
services to Xxxxxx, Xxxxxx & Xxxxxxxxxx LLP. For purposes of this Paragraph
l(c), a "passive investment" shall be deemed to mean investment in a business
which does not require or result in the participation of the Employee in the
management or operations of such business except during times other than regular
business hours and which does not interfere with her duties and responsibilities
to the Corporation. Nothing contained herein shall limit the right of the
Employee to make speeches, write articles or participate in public debate and
discussions in and by means of any medium of communication provided that such
activities are not inconsistent with the Employee's obligations hereunder.
(d) Consistent with the Employee's aforesaid
duties the Employee shall, at all times during the term hereof, be subject to
the supervision and direction of the Board of Directors of the
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Corporation with respect to her duties, responsibilities and the exercise of her
powers.
(e) The services of the Employee hereunder shall
be rendered primarily in Stuart, Florida at the Corporation's principal
executive offices; provided, however, that the Employee shall make such trips
outside of Stuart, Florida as shall be reasonably necessary in connection with
the Employee's duties hereunder.
2. The Corporation shall pay to the Employee during the
term of her employment by the Corporation and the Employee shall accept as her
entire compensation for her services hereunder:
(a) A base salary ("Base Salary") at the rate of
$150,000 per annum or such greater rate as may from time to time be authorized
by the Board of Directors of the Corporation, payable in accordance with the
Corporation's regular payment schedule for its employees.
(b) Bonuses in amounts from time to time
determined by the Board of Directors of the Corporation in its sole and absolute
discretion.
(c) The Corporation shall grant to the Employee
incentive and non-qualified stock options (the "Options") pursuant to the
Corporation's 1995 Stock Option Plan to purchase up to One Hundred Thousand
(100,000) shares of the Corporation's common stock, $.001 par value, such
Options to be evidenced by agreements attached hereto as EXHIBITS A AND B.
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(d) The Corporation will reimburse the Employee
for her necessary and reasonable out-of-pocket expenses incurred in the course
of her employment and in connection with her duties hereunder.
(e) The Corporation will provide the Employee
with medical insurance coverage under the Corporation's group medical insurance
policy and the Employee shall be entitled to participate in all other health,
welfare, retirement, disability, and other benefit plans, if any, available to
employees and senior executives of the Corporation.
(f) The Employee shall be entitled to paid
vacation and/or sick days during each twelve (12) month period during the term
of this Agreement of the same duration as provided to other executive officers
of the Corporation.
3. The term of the Employee's employment hereunder shall be
deemed to commence effective as of October 16, 1996 and shall continue, except
as otherwise provided herein, through October 15, 1999.
4. (a) Except as otherwise provided herein, the
term of the employment of the Employee shall terminate:
(i) automatically upon the death of the
Employee;
(ii) at the option of the Corporation, upon
written notice thereof to the Employee, in the event that the Employee shall
become permanently incapacitated (as hereinafter defined); and
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(iii) at the option of the Corporation, upon 30
days' prior written notice thereof to the Employee specifying the basis thereof,
in the event of a material breach by the Employee of any of the provisions of
this Agreement which is not cured by the Employee within thirty (30) days after
the Employee is provided with such written notice, or in the event that the
Employee shall, during the term of this Agreement, engage in any criminal
conduct constituting a felony and criminal charges are brought against the
Employee by a governmental authority or, in the determination of the Board of
Directors of the Corporation, be guilty of willful malfeasance or gross
negligence which materially and adversely affects the business of the
Corporation ("Cause").
(b) For purposes of this Agreement, the Employee
shall be deemed permanently incapacitated in the event that the Employee shall,
by reason of her physical or mental disability, fail to substantially perform
her usual and regular duties for the Corporation for a consecutive period of
twelve (12) months or for twelve (12) months in the aggregate in any eighteen
(18) month period; provided, however, that the Employee shall not be deemed
permanently incapacitated unless and until a physician, duly licensed to
practice medicine and reasonably acceptable to the Corporation and the Employee,
shall certify in writing to the Corporation that the nature of the Employee's
disability is such that it will continue as a substantial impediment to the
Employee's ability to substantially perform her duties hereunder.
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5. Notwithstanding anything to the contrary contained
herein:
(a) In the event that the Employee shall die
during the term of this Agreement, the Corporation shall, in lieu of any other
compensation payable hereunder, pay to the beneficiaries theretofore designated
in writing by the Employee (or to the Employee's estate if no such beneficiaries
shall have been designated), a sum equal to one hundred percent (100%) of the
compensation payable to the Employee during the twelve (12) month period
immediately preceding the Employee's death, such sum may be paid at the option
of the Corporation in thirty-six (36) equal monthly installments, without
interest, commencing one month following such death. To the extent that the
Corporation receives the proceeds on any life insurance on the life of the
Employee (as provided in Paragraph 5(e)) such proceeds shall be paid to the
beneficiaries theretofore designated in writing by the Employee (or the
Employee's estate if no such beneficiaries shall have been designated) to fund
the obligations under this Section 5(a) and shall reduce such obligations on a
dollar for dollar basis. The balance, if any, due the Employee under this
Section 5(a) shall thereafter be paid in eighteen (18) equal monthly
installments, without interest, commencing one month following the receipt of
such insurance proceeds by the Corporation.
(b) In the event that the Employee shall become
permanently incapacitated, then for the period prior to any termination of her
employment in accordance with Paragraph 4(a)(ii)
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above, as a result of the Employee becoming permanently incapacitated, the
Employee shall continue to receive one hundred percent (100%) of her regular
annual compensation provided for herein which is attributable to such period.
Such payments shall be in addition to all income disability benefits, if any,
which the Employee may receive from policies provided by or through the
Corporation, including state-required short term disability.
(c) In the event that the employment of the
Employee shall be terminated by reason of the Employee becoming permanently
incapacitated, then, as additional consideration for her past services to the
Corporation, she shall receive one hundred percent (100%) of her then current
annual base salary, in equal monthly installments, without interest, for a
period of twelve (12) months from the date of such termination.
(d) In the event of a termination of the
Employee's employment for Cause, the Employee shall not be entitled to any
payments other than such compensation as shall have been earned by her prior to
the occurrence of the event giving rise to the termination and not paid as of
the date of such termination.
(e) In the event that the Corporation shall
desire to fund the death benefits payable under Paragraph 5(a) above with a
policy or policies of insurance on the life of the Employee or the disability
benefits payable under Paragraphs 5(b) and 5(c) above with a disability policy,
the Employee shall cooperate with the Corporation in obtaining such insurance
policy(ies) and shall
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submit to such medical examinations and execute such documents as may be
required in connection with the obtaining of such insurance.
6. The Employee acknowledges that, because of her duties and
her position of trust under this Agreement, she will become familiar with trade
secrets and other confidential information (including, but not limited to,
operating methods and procedures, secret lists of actual and potential sources
of supply, customers and employees, costs, profits, markets, sales and plans for
future developments) which are valuable assets and property rights of the
Corporation and not publicly known. Except in connection with the performance of
her duties for the Corporation, the Employee agrees that she will not, during or
at any time after the term of this Agreement, either directly or indirectly,
disclose to any person, firm or corporation such trade secrets or other
confidential information, including, but not limited to, any facts concerning
the systems, methods, procedures or plans developed or used by the Corporation.
The Employee agrees to retain all such trade secrets and other confidential
information in a fiduciary capacity for the sole benefit of the Corporation, its
successors and assigns. Upon termination of her employment by the Corporation or
at any time that the Corporation may so request, the Employee will surrender to
the Corporation all non-public papers, notes, reports and other documents (and
all copies thereof) relating to the business of the Corporation which she may
then possess or have under her control.
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7. For a period of one (1) year following the expiration or
earlier termination of this Agreement, the Employee shall not, without the prior
written consent of the Corporation, directly or indirectly:
(a) solicit any business for or from, or become
associated with, as principal, agent, employee, consultant, or in any other
capacity, any person who, or entity which, at the time of, or during the twelve
(12) months immediately preceding such expiration or termination was in direct
competition with the Corporation;
(b) become a principal, agent, employee,
consultant, or otherwise become associated with any person who, or entity which,
has taken affirmative action which would permit such entity or person to
actually engage in direct competition with the Corporation during a period of
one (1) year following the expiration or earlier termination of this Agreement.
8. The provisions of Paragraphs 6 and 7 of this Agreement are
of a unique nature and of extraordinary value and of such a character that a
material breach of the provisions of either Paragraphs 6 or 7 of this Agreement
by the Employee will result in irreparable damage and injury to the Corporation
for which the Corporation will not have any adequate remedy at law. Therefore,
in the event that the Employee commits or threatens to commit any such breach,
the Corporation will have (a) the right and remedy to have the provisions of
Paragraphs 6 and 7 of this Agreement specifically enforced by any court having
equity jurisdiction, it
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being agreed that in any proceeding for an injunction, and upon any motion for a
temporary or permanent injunction, the Employee's ability to answer in damages
shall not be a bar or interposed as a defense to the granting of such injunction
and (b) the right and remedy to require the Employee to account for and to pay
over to the Corporation all compensation, profits, monies, accruals, increments
and other benefits (hereinafter referred to collectively as the "Benefits")
derived or received by her as a result of any transactions constituting a breach
of any of the provisions of Paragraphs 6 and 7 of this Agreement, and the
Employee hereby agrees to account for and pay over such Benefits to the
Corporation. Each of the rights and remedies enumerated in (a) and (b) above
shall be independent of the other, and shall be severally enforceable, and all
of such rights and remedies shall be in addition to, and not in lieu of, any
other rights and remedies available to the Corporation under law or in equity.
9. (a) For purposes of this Paragraph 9, the
following definitions shall have the following meanings:
"Change in Control" shall mean:
(i) on or after the date of execution of this
Agreement, any person (which, for all purposes hereof, shall include, without
limitation, an individual, sole proprietorship, partnership, unincorporated
association, unincorporated syndicate, unincorporated organization, trust, body
corporate and a trustee, executor, administrator or other legal representative)
(a "Person") or any group of two or more Persons acting in concert becoming the
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beneficial owner, directly or indirectly, of securities of the Corporation
representing, or acquiring the right to control or direct, or to acquiring
through the conversion of securities or the exercise of warrants or other rights
to acquire securities, 25% or more of the combined voting power of the
Corporation's then outstanding securities. Voting power means the right to vote
for the election of directors. Any determination of percentage combined voting
power shall be made on the basis that (x) all securities beneficially owned by
the Person or group or over which control or direction is exercised by the
Person or group which are convertible into securities carrying voting rights
have been converted (whether or not then convertible) and all options, warrants
or other rights which may be exercised to acquire securities beneficially owned
by the Person or group or over which control of direction is exercised by the
Person or group have been exercised (whether or not then exercisable), and (y)
no such convertible securities have been converted by any other Person and no
such option, warrants or other rights have been exercised by any other Person;
or
(ii) at any time subsequent to the date of
execution of this Agreement there shall be elected or appointed to the Board of
Directors of the Corporation any director or directors whose appointment or
election by the Board of Directors or nomination for election by the
Corporation's shareholders was not approved by a vote of at least a majority of
the directors then still in office who were either directors on the date of
execution of this
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Agreement or whose election or appointment or nomination for election was
previously so approved; or
(iii) a reorganization, merger, consolidation,
combination, corporate restructuring or similar transaction (an "Event"), in
each case, in respect of which the beneficial owners of the outstanding
Corporation voting securities immediately prior to such Event do not, following
such Event, beneficially own, directly or indirectly, more than 51% of the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors of the Corporation and any resulting
Parent in substantially the same proportions as their ownership, immediately
prior to such Event, of the outstanding Corporation voting securities; or
(iv) an Event involving the Company as a result
of which 25% or more of the members of the board of directors of the Parent or
the Company are not persons who were members of the Board of Directors
immediately prior to the earlier of (x) the Event, (y) execution of an agreement
the consummation of which would result in the Event, or (z) announcement by the
Corporation of an intention to effect the Event; or
(v) Xxxxxx Xxxxxxx shall no longer serve as
Chairman of the Board of the Corporation or shall no longer be actively involved
in the business of the Corporation; or
(vi) the Board of Directors adopts a resolution
to the effect that, for purposes of this Agreement, a Change in Control has
occurred.
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"Code" shall mean the Internal Revenue Code of 1986,
as amended.
"Change in Control Date" shall be any date during the
term of this Agreement on which a Change in Control occurs. Anything in this
Agreement to the contrary notwithstanding, if the Employee's employment is
terminated within six months prior to the date on which a Change in Control
occurs, and it is reasonably demonstrated that such termination (i) was at the
request of a third party who has taken steps reasonably calculated or intended
to effect a Change in Control or (ii) otherwise arose in connection with or
anticipation of a Change in Control, then for all purposes of this Agreement the
"Change in Control Date" shall mean the date immediately prior to the date of
such termination.
"Parent" means any entity which directly or
indirectly through one or more other entities owns or controls more than 50% of
the voting stock or common stock of the Corporation.
"Protection Period" means the period beginning on the
Change in Control Date and ending twenty-four months following the Change in
Control Date.
(b) The Employee may terminate this Agreement after a
Change of Control Date and during any Protection Period.
(c) If, during a Protection Period, the Employee's
employment shall be terminated by the Corporation other than for Cause or
permanent disability or other than as a result of the Employee's death or if the
Employee shall terminate her employment pursuant to Paragraph 9(b), the
Corporation shall pay to the
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Employee in a lump sum in cash within 10 days after the date of termination the
aggregate of the following amounts and shall provide the following benefits:
(i) The Employee's full base salary and vacation pay (for
vacation not taken) accrued but unpaid through the date of termination at the
rate in effect at the time of the termination;
(ii) A lump sum severance payment in an amount equal to 300% of the
Employee's "Annual Compensation." For purposes of this Agreement, "Annual
Compensation" shall be an amount equal to the aggregate of the Employee's annual
cash compensation (other than bonus) from the Corporation, whether paid
currently or deferred in effect immediately prior to the date of termination or
Change in Control (whichever is greater) plus the highest bonus payable to the
Employee (whether paid currently or deferred by the Employee) for any of the
Corporation's three fiscal years preceding the date of termination or Change in
Control (whichever is greater).
(iii) Within 30 days of the date of termination, upon
surrender by the Employee of her outstanding options to purchase common shares
of the Corporation ("Common Shares") granted to the Employee pursuant to the
1995 Stock Option Plan of the Corporation (the "Outstanding Options"), an amount
in respect of each Outstanding Option equal to the difference between the
exercise price of such Outstanding Options and the higher of (x) the fair market
value of the Common Shares at the time of such termination, and (y) the highest
price paid for Common Shares or, in the cases of securities convertible into
Common Shares or carrying a right to
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acquire Common Shares, the highest effective price (based on the prices paid for
such securities) at which such securities are convertible into Common Shares or
at which Common Shares may be acquired, by any person or group whose acquisition
of voting securities has resulted in a Change in Control of the Corporation.
(d) If, during a Protection Period, the Employee's employment
shall be terminated by the Corporation other than for Cause or permanent
disability or other than as a result of the Employee's death or if the Employee
shall terminate her employment pursuant to Paragraph 9(b), the Corporation shall
pay the Employee's medical insurance premiums for one year after the date of
termination.
(e) The Corporation's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which the Corporation may have against the Employee or
others. In no event shall the Employee be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the
Employee under any of the provisions of this Agreement. The Corporation agrees
to pay, upon written demand therefor by the Employee, all legal fees and
expenses which the Employee may reasonably incur as a result of any dispute or
contest (regardless of the outcome thereof) by or with the Corporation or others
regarding the validity or enforceability of, or liability under, any provision
of this Agreement. In any such action brought
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by the Employee for damages or to enforce any provisions of this Agreement, she
shall be entitled to seek both legal and equitable relief and remedies,
including, without limitation, specific performance of the Company's obligations
hereunder, his sole discretion.
(f) (i) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution made, or benefit provided (including, without limitation, the
acceleration of any payment, distribution or benefit and the acceleration or
exercisability of any stock option), by the Corporation to or for the benefit of
the Employee (whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement or otherwise, but determined without regard to
any additional payments required under this Paragraph 9(f) (a "Payment") would
be subject to the excise tax imposed by Section 4999 of the Code (or any similar
excise tax) or any interest or penalties are incurred by the Employee with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
the Employee shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Employee of all taxes
(including any Excise Tax, income tax or payroll tax) imposed upon the Gross-Up
Payment and any interest or penalties imposed with respect to such taxes, the
Employee retains from the Gross-Up Payment an amount equal to the Excise Tax
imposed upon the payments.
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(ii) Subject to the provisions of Paragraph 9(f)(iii), all
determinations required to be made under this Paragraph 9(f)(iii), including
determination of whether a Gross-Up Payment is required and of the amount of any
such Gross-Up Payment, shall be made by the independent certified public
accountants for the Corporation (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Corporation and the Employee within
15 business days of the date of termination, of applicable, or such earlier time
as is requested by the Corporation, provided that any determination that an
Excise Tax is payable by the Employee shall be made on the basis of substantial
authority. The initial Gross-Up Payment, if any, as determined pursuant to this
Paragraph 9(f)(ii), shall be paid to the Employee within five business days of
the receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Employee, it shall furnish the
Employee with a written opinion that she has substantial authority not to report
any Excise Tax on her Federal income tax return. Any determination by the
Accounting Firm meeting the requirements of this Paragraph 9(f)(ii) shall be
binding upon the Corporation and the Employee; subject only to payments pursuant
to the following sentence based on a determination that additional Gross-Up
Payments should have been made, consistent with the calculations required to be
made hereunder (the amount of such additional payments, including any interest
and penalties, are referred to herein as the "Gross-Up Underpayment"). In the
event that the Corporation exhausts its
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remedies pursuant to Section 9(f)(iii) and the Employee thereafter is required
to make a payment of any Excise tax, the Accounting Firm shall determine the
amount of the Gross-Up Underpayment that has occurred and any such Gross-Up
Underpayment shall be promptly paid by the Corporation to or for the benefit of
the Employee. The fees and disbursements of the Accounting Firm shall be paid by
the Corporation.
(iii) The Employee shall notify the Corporation in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Corporation of a Gross-Up Payment. Such notification shall be
given as soon as practicable but not later than ten business days after the
Employee receives written notice of such claim and shall apprise the Corporation
of the nature of such claim and the date on which such claim is requested to be
paid. The Employee shall not pay such claim prior to the expiration of the
30-day period following the date on which it gives such notice to the
Corporation (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Corporation notifies the Employee in
writing prior to the expiration of such period that it desires to contest such
claim and that it will bear the costs and provide the indemnification as
required by this sentence, the Employee shall:
(a) give the Corporation any information reasonably
requested by the Corporation relating to such claim,
(b) take such action in connection with contesting such
claim as the Corporation shall reasonably request in writing from
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time to time, including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the Corporation and
reasonably satisfactory to the Employee,
(c) cooperate with the Corporation in good faith in order
effectively to contest such claims, and
(d) permit the Corporation to participate in any
proceedings relating to such claim; PROVIDED HOWEVER, that the Corporation shall
bear and pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and hold
the Employee harmless, on an after-tax basis, for any Excise Tax, income tax or
payroll tax, including interest and penalties with respect thereto, imposed as a
result of such representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Paragraph 9(f)(iii), the
Corporation shall control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forego any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct the Employee to
pay the tax claimed and xxx for a refund or contest the claim in any permissible
manner, and the Employee agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Corporation shall determine; PROVIDED
HOWEVER, that if the Corporation directs the
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Employee to pay such claim and xxx for a refund, the Corporation shall advance
the amount of such payment to the Employee, on an interest-free basis and shall
indemnify and hold the Employee harmless, on an after-tax basis, from any Excise
Tax, income tax or payroll tax, including interest or penalties with respect
thereto, imposed with respect to such advance; AND FURTHER PROVIDED that any
extension of the statute of limitations relating to the payment of taxes for the
taxable year of the Employee with respect to which such contested amount is
claimed to be due is limited solely to such contested amount. Furthermore, the
Corporation's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Employee shall be
entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(iv) If, after the receipt by the Employee of an amount
advanced by the Corporation pursuant to Paragraph 9(f), the Employee becomes
entitled to receive any refund with respect to such claim, the Employee shall
(subject to the Corporation's complying with the requirements of Paragraph 9(f)
promptly pay to the Corporation the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Employee of an amount advanced by the Corporation pursuant to
Paragraph 9(f), a determination is made that the Employee shall not be entitled
to any refund with respect to such claim and the Corporation does not notify the
Employee in
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writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then any obligation of the Employee to
repay such advance shall be forgiven and the amount of such advance shall
offset, to the extent thereof, the amount of Gross-Up Payment required to be
paid.
(g) SUCCESSORS. The Corporation will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Corporation and
any Parent of the Corporation or any successor and without regard to the form of
transaction utilized by the parent to acquire the business or assets of the
Corporation, to assume expressly an agree to perform this Agreement in the same
manner and to the same extent that the Corporation would be required to perform
it if no such succession or Parentage had taken place. As used in this
Agreement, "Corporation" shall mean the Corporation as hereinbefore defined and
any successor) which is required by this clause to assume and agree to perform
this Agreement or which otherwise assumes and agrees to perform this Agreement.
10. In the event that any provision, or any portion of any
provision, of this Agreement shall be held to be void or unenforceable, the
remaining provisions of this Agreement, and the remaining portion of any
provision found void or unenforceable in part only, shall continue in full force
and effect.
11. The Employee represents and warrants that she has made no
commitment of any kind whatsoever inconsistent with the
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provisions of this Agreement and that she is under no disability of any kind to
enter into this Agreement and to perform all of her obligations hereunder.
12. This Agreement shall inure to the benefit of and shall be
binding upon the parties and their respective successors and permitted assigns.
This Agreement being personal to the Employee, cannot be assigned by her. This
Agreement may be assigned by the Corporation in the event and in connection with
a merger, consolidation or sale of all or substantially all of the assets of the
Corporation provided that the assignee agrees in writing to assume all of the
obligations of the Corporation under this Agreement and such assignment shall
not relieve the Corporation of its obligations hereunder. Prompt written notice
of such assignment shall be provided by the Corporation to the Employee.
13. Any dispute or controversy between the parties relating to
or arising out of this Agreement or any amendment or modification hereof shall
be determined by the [Supreme Court], County of Xxxxxx, State of Florida. The
service of any notice, process, motion or other document in connection with an
action under this Agreement, may be effectuated by either personal service upon
a party or by certified mail duly addressed to her at her address set forth on
page 1 hereof.
14. Any notice or communication required or permitted to be
given hereunder shall be deemed duly given if delivered personally or sent by
registered or certified mail, return receipt
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requested, to the address of the intended recipient as herein set forth or to
such other address as a party may theretofore have specified in writing to the
other. Any notice or communication intended for the Corporation shall be
addressed to the attention of its Board of Directors.
15. A waiver of any breach or violation of any term,
provision, agreement, covenant, or condition herein contained shall not be
deemed to be a continuing waiver or a waiver of any future or past breach or
violation.
16. This Agreement constitutes the entire agreement and
understanding between the Corporation and the Employee relating to the latter's
employment, supersedes any prior agreement between the parties relating to such
matter, shall be governed by and construed in accordance with the laws of the
State of Florida and may not be changed, terminated or discharged orally.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands as of the day and year first above written.
NUCO2 INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx, Chairman of
the Board and
Chief Executive Officer
/s/ Xxxxx Xxxxxxxx
----------------------------------
XXXXX XXXXXXXX
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EXHIBIT A
NUCO2 INC.
0000 X.X. XXXXXX XXXXX
XXXXXX, XXXXXXX 00000
October 16, 1996
To: Xxxxx Xxxxxxxx
0000 X.X. Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
We are pleased to inform you that on October 16, 1996, the
Stock Option Committee of the Board of Directors of NuCo2 Inc. (the "Company")
granted you an incentive stock option (the "Option") pursuant to the Company's
1995 Stock Option Plan (the "Plan"), to purchase 14,634 shares (the "Shares") of
Common Stock, par value $.001 per share, of the Company, at a price of $20.50
per Share.
The Option may be exercised prior to October 16, 1999 (on
which date the Option will, to the extent not previously exercised, expire) as
follows: (i) as to one-third the number of Shares on or after October 16, 1997,
(ii) as to one-third the number of Shares on or after October 16, 1998 and (iii)
as to the remaining one-third of the number of Shares on or after October 16,
1999, provided, however, that in the event that the Employment Agreement between
you and the Company dated October 16, 1996 (the "Employment Agreement") is not
renewed or otherwise extended prior to September 30, 1999, the Option may be
exercised with respect to the remaining one-third of the number of Shares on or
after October 1, 1999. In addition, in the event of a Change in Control as
defined in the Employment Agreement, all portions of the Option, whether or not
then exercisable, shall immediately become exercisable. You must purchase a
minimum of 100 Shares each time you choose to purchase Shares, except to
purchase the remaining Shares available to you.
The Option is issued in accordance with and is subject to and
conditioned upon all of the terms and conditions of the Plan (a copy of which in
its present form is attached hereto), as from time to time amended, provided,
however, that no future amendment or termination of the Plan shall, without your
consent, alter or impair any of your rights or obligations under the Option.
Reference is made to the terms and conditions of the Plan, all of which are
incorporated by reference in this option agreement as if fully set forth herein.
-24-
Unless at the time of the exercise of the Option a
registration statement under the Securities Act of 1933, as amended (the "Act"),
is in effect as to such Shares, any Shares purchased by you upon the exercise of
the Option shall be acquired for investment and not for sale or distribution,
and if the Company so requests, upon any exercise of the Option, in whole or in
part, you will execute and deliver to the Company a certificate to such effect.
The Company shall not be obligated to issue any Shares pursuant to the Option
if, in the opinion of counsel to the Company, the Shares to be so issued are
required to be registered or otherwise qualified under the Act or under any
other applicable statute, regulation or ordinance affecting the sale of
securities, unless and until such Shares have been so registered or otherwise
qualified.
You understand and acknowledge that, under existing law,
unless at the time of the exercise of the Option a registration statement under
the Act is in effect as to such Shares (i) any Shares purchased by you upon
exercise of the Option may be required to be held indefinitely unless such
Shares are subsequently registered under the Act or an exemption from such
registration is available; (ii) any sales of such Shares made in reliance upon
Rule 144 promulgated under the Act may be made only in accordance with the terms
and conditions of that Rule (which, under certain circumstances, restrict the
number of shares which may be sold and the manner in which shares may be sold);
(iii) in the case of securities to which Rule 144 is not applicable, compliance
with Regulation A promulgated under the Act or some other disclosure exemption
will be required; (iv) certificates for Shares to be issued to you hereunder
shall bear a legend to the effect that the Shares have not been registered under
the Act and that the Shares may not be sold, hypothecated or otherwise
transferred in the absence of an effective registration statement under the Act
relating thereto or an opinion of counsel satisfactory to the Company that such
registration is not required; (v) the Company will place an appropriate "stop
transfer" order with its transfer agent with respect to such Shares; and (vi)
the Company has undertaken no obligation to register the Shares or to include
the Shares in any registration statement which may be filed by it subsequent to
the issuance of the shares to you. In addition, you understand and acknowledge
that the Company has no obligation to you to furnish information necessary to
enable you to make sales under Rule 144.
The Option (or installment thereof) is to be exercised by
delivering to the Company a written notice of exercise in the form attached
hereto as Exhibit A, specifying the number of Shares to be purchased, together
with payment of the purchase price of the Shares to be purchased. The purchase
price is to be paid in cash or, at the discretion of the Stock Option Committee,
by delivering shares of the Company's stock already owned by you and having a
fair market value on the date of exercise equal to the exercise
-25-
price of the Option, or a combination of such shares and cash, or otherwise in
accordance with the Plan.
Would you kindly evidence your acceptance of the Option and
your agreement to comply with the provisions hereof and of the Plan by executing
this letter under the words "Agreed To and Accepted."
Very truly yours,
NuCo2 Inc.
By:____________________________
Xxxxxx X. Xxxxxxx, Chairman
of the Board
AGREED TO AND ACCEPTED:
-----------------------
Xxxxx Xxxxxxxx
-26-
Exhibit A
NuCo2 Inc.
0000 X.X. Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Notice is hereby given of my election to purchase _____ shares
of Common Stock, $.001 par value (the "Shares"), of NuCo2 Inc., at a price of
$____ per Share, pursuant to the provisions of the incentive stock option
granted to me on October 16, 1996, under the Company's 1995 Stock Option Plan.
Enclosed in payment for the Shares is:
____
/___/ my check in the amount of $________.
----
*/___/ ___________ Shares having a total value
$________, such value being based on the
closing price(s) of the Shares on the date
hereof.
The following information is supplied for use in issuing and
registering the Shares purchased hereby:
Number of Certificates
and Denominations ___________________
Name ___________________
Address ___________________
___________________
Social Security Number ___________________
Dated: _______________
Very truly yours,
__________________________
Xxxxx Xxxxxxxx
*Subject to the approval of the
Stock Option Committee
-27-
EXHIBIT B
NUCO2 INC.
0000 X.X. XXXXXX XXXXX
XXXXXX, XXXXXXX 00000
October 16, 1996
To: Xxxxx Xxxxxxxx
0000 X.X. Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
We are pleased to inform you that on October 16, 1996, the
Stock Option Committee of the Board of Directors of NuCo2 Inc. (the "Company")
granted you a non-qualified stock option (the "Option") pursuant to the
Company's 1995 Stock Option Plan (the "Plan"), to purchase 85,366 shares (the
"Shares") of Common Stock, par value $.001 per share, of the Company, at a price
of $20.50 per Share.
The Option may be exercised prior to October 16, 1999 (on
which date the Option will, to the extent not previously exercised, expire) as
follows: (i) as to one-third the number of Shares on or after October 16, 1997,
(ii) as to one-third the number of Shares on or after October 16, 1998 and (iii)
as to the remaining one-third of the number of Shares on or after October 16,
1999, provided, however, that in the event that the Employment Agreement between
you and the Company dated October 16, 1996 (the "Employment Agreement") is not
renewed or otherwise extended prior to September 30, 1999, the Option may be
exercised with respect to the remaining one-third of the number of Shares on or
after October 1, 1999. In addition, in the event of a Change in Control as
defined in the Employment Agreement, all portions of the Option, whether or not
then exercisable, shall immediately become exercisable. You must purchase a
minimum of 100 Shares each time you choose to purchase Shares, except to
purchase the remaining Shares available to you.
The Option is issued in accordance with and is subject to and
conditioned upon all of the terms and conditions of the Plan (a copy of which in
its present form is attached hereto), as from time to time amended, provided,
however, that no future amendment or termination of the Plan shall, without your
consent, alter or impair any of your rights or obligations under the Option.
Reference is made to the terms and conditions of the Plan, all of which are
incorporated by reference in this option agreement as if fully set forth herein.
-28-
Unless at the time of the exercise of the Option a
registration statement under the Securities Act of 1933, as amended (the "Act"),
is in effect as to such Shares, any Shares purchased by you upon the exercise of
the Option shall be acquired for investment and not for sale or distribution,
and if the Company so requests, upon any exercise of the Option, in whole or in
part, you will execute and deliver to the Company a certificate to such effect.
The Company shall not be obligated to issue any Shares pursuant to the Option
if, in the opinion of counsel to the Company, the Shares to be so issued are
required to be registered or otherwise qualified under the Act or under any
other applicable statute, regulation or ordinance affecting the sale of
securities, unless and until such Shares have been so registered or otherwise
qualified.
You understand and acknowledge that, under existing law,
unless at the time of the exercise of the Option a registration statement under
the Act is in effect as to such Shares (i) any Shares purchased by you upon
exercise of the Option may be required to be held indefinitely unless such
Shares are subsequently registered under the Act or an exemption from such
registration is available; (ii) any sales of such Shares made in reliance upon
Rule 144 promulgated under the Act may be made only in accordance with the terms
and conditions of that Rule (which, under certain circumstances, restrict the
number of shares which may be sold and the manner in which shares may be sold);
(iii) in the case of securities to which Rule 144 is not applicable, compliance
with Regulation A promulgated under the Act or some other disclosure exemption
will be required; (iv) certificates for Shares to be issued to you hereunder
shall bear a legend to the effect that the Shares have not been registered under
the Act and that the Shares may not be sold, hypothecated or otherwise
transferred in the absence of an effective registration statement under the Act
relating thereto or an opinion of counsel satisfactory to the Company that such
registration is not required; (v) the Company will place an appropriate "stop
transfer" order with its transfer agent with respect to such Shares; and (vi)
the Company has undertaken no obligation to register the Shares or to include
the Shares in any registration statement which may be filed by it subsequent to
the issuance of the shares to you. In addition, you understand and acknowledge
that the Company has no obligation to you to furnish information necessary to
enable you to make sales under Rule 144.
The Option (or installment thereof) is to be exercised by
delivering to the Company a written notice of exercise in the form attached
hereto as Exhibit A, specifying the number of Shares to be purchased, together
with payment of the purchase price of the Shares to be purchased. The purchase
price is to be paid in cash or, at the discretion of the Stock Option Committee,
by delivering shares of the Company's stock already owned by you and having a
fair market value on the date of exercise equal to the exercise price of the
Option, or a combination of such shares and cash, or otherwise in accordance
with the Plan.
-29-
Would you kindly evidence your acceptance of the Option and
your agreement to comply with the provisions hereof and of the Plan by executing
this letter under the words "Agreed To and Accepted."
Very truly yours,
NuCo2 Inc.
By:____________________________
Xxxxxx X. Xxxxxxx, Chairman
of the Board
AGREED TO AND ACCEPTED:
-----------------------
Xxxxx Xxxxxxxx
-30-
EXHIBIT A
NuCo2 Inc.
0000 X.X. Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Notice is hereby given of my election to purchase _____ shares
of Common Stock, $.001 par value (the "Shares"), of NuCo2 Inc., at a price of
$____ per Share, pursuant to the provisions of the non-qualified stock option
granted to me on October 16, 1996, under the Company's 1995 Stock Option Plan.
Enclosed in payment for the Shares is:
____
/___/ my check in the amount of $________.
----
*/___/ ___________ Shares having a total value
$________, such value being based on the
closing price(s) of the Shares on the date
hereof.
The following information is supplied for use in issuing and
registering the Shares purchased hereby:
Number of Certificates
and Denominations ___________________
Name ___________________
Address ___________________
___________________
Social Security Number ___________________
Dated: _______________
Very truly yours,
__________________________
Xxxxx Xxxxxxxx
*Subject to the approval of the
Stock Option Committee
-31-
