EXHIBIT 10.17
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"),
effective as of August 10, 2004, is 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 XXXXXXX
XxXXXXXXXX, residing at 0000 XX Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000
(hereinafter referred to as the "Executive").
RECITALS
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WHEREAS, the Corporation and the Executive entered into an
employment agreement effective as of the 2nd day of June 2000 (the "Old
Employment Agreement");
WHEREAS, the Corporation and the Executive choose to enter into this
Agreement to replace in its entirety the Old Employment Agreement; and
WHEREAS, the Corporation desires to continue to employ Executive and
to have the benefit of his skills and services, and Executive desires to
continue to be employed with the Corporation, on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein, and the performance of each, the
parties hereto, intending legally to be bound, hereby agree as follows:
ARTICLE 1 - EMPLOYMENT TERMS AND DUTIES
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1.1 The Corporation hereby agrees to employ the Executive and the
Executive agrees to work for the Corporation as its Chief Executive Officer (the
"CEO"); as such, he will be responsible for the overall management of the
Corporation's business. The Executive shall serve as and perform the duties of
CEO of the Corporation during the Term (defined hereinafter) of this Agreement.
In addition, the Executive shall continue to be a member of the Board of
Directors of the Corporation (the "Board") during the Term of this Agreement.
1.2 The Executive agrees to devote his 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
him by the Board consistent with his position as CEO. During the Term of his
employment hereunder, the Executive 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 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. For purposes of this
Paragraph l.2, a "passive investment" shall be deemed to mean investment in a
business which does not require or result in the participation of the Executive
in the management or operations of such business except during times other than
regular business hours and which does not interfere with his duties and
responsibilities to the Corporation. Nothing contained herein shall limit the
right of the Executive to make speeches, write articles or participate in public
debate and discussions in and by means of any medium of communication or serve
as a director or trustee of any non-competing corporation or organization,
provided that such activities are not inconsistent with the Executive's
obligations hereunder.
1.3 Consistent with the Executive's aforesaid duties the Executive
shall, at all times during the Term hereof, be subject to the supervision and
direction of the Board with respect to his duties, responsibilities and the
exercise of his powers.
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1.4 The services of the Executive hereunder shall be rendered
primarily at the Corporation's principal executive offices currently in Stuart,
Florida; provided, however, that the Executive shall make such trips outside of
Stuart, Florida as shall be reasonably necessary in connection with the
Executive's duties hereunder.
1.5 The term of this Agreement shall commence upon the execution by
the Executive of this Agreement and such employment shall continue, except as
otherwise provided herein, through June 30, 2007 (the "Term").
ARTICLE 2 - COMPENSATION
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The Corporation shall pay to the Executive during the Term of his
employment by the Corporation and the Executive shall accept as his entire
compensation for his services hereunder:
(a) A base salary ("Base Salary") at the rate of $400,000 per
annum or such greater rate as may from time to time be authorized by the Board,
payable in accordance with the Corporation's regular payment schedule for its
employees. The Base Salary will be reviewed annually and may be increased from
time to time by the Board in its sole discretion.
(b) During the Term of this Agreement and subject to the
provisions hereof, the Executive shall be entitled, at the end of each fiscal
year of the Corporation (each June 30 during the Term of this Agreement), to an
annual bonus based upon the relative performance of the Corporation and the
Executive for the applicable fiscal year. The bonus may be comprised of options
to purchase the Corporation's common stock, $0.001 par value per share (the
"Common Stock") and cash payments, the relative amounts of which will be
determined by the Board as follows:
(i) If the Corporation achieves its estimated EBITDA and
other operating and financial criteria as projected in the Corporation's
business plan established by the Board for the applicable fiscal year, the
Executive shall receive a bonus consisting of a cash payment of no less than 70%
of Base Salary (the "Target Cash Bonus") and such number of options to purchase
the Corporation's Common Stock as determined by the Board;
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(ii) In the event that the Corporation exceeds its
estimated EBITDA and other operating and financial criteria as projected in the
Corporation's business plan established by the Board for such fiscal year, the
Executive shall receive a bonus consisting of a cash payment in excess of the
Target Cash Bonus and options to purchase in the Corporation's Common Stock, the
exact amount of which to be determined by the Board.
(c) The Corporation will reimburse the Executive for his
necessary and reasonable out-of-pocket expenses incurred in the course of his
employment and in connection with his duties hereunder.
(d) The Corporation will provide the Executive with medical
insurance coverage under the Corporation's group medical insurance policy and
the Executive 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 (collectively, the "Benefit Plans").
(e) The Executive 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,
but in no event shall he receive less than four (4) weeks paid vacation per
year.
ARTICLE 3 - STOCK OPTIONS
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In addition to the compensation set forth in Article 2 hereof, the Corporation
may grant stock options (together with the stock options granted pursuant to
Article 2 hereof, the "Options") to the Executive. Any such Options shall be
issued pursuant to the Corporation's 1995 Stock Option Plan (of which the
maximum amount allowed by United States tax law shall be considered as incentive
stock options).
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ARTICLE 4 - TERMINATION
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4.1 Except as otherwise provided herein, the Term of the employment
of the Executive shall terminate:
(a) automatically upon the death of the Executive;
(b) at the option of the Corporation, upon written notice
thereof to the Executive, in the event that the Executive shall become
permanently incapacitated (as hereinafter defined);
(c) at the option of the Corporation, upon thirty (30) days'
prior written notice thereof to the Executive specifying the basis thereof, in
the event of a material breach by the Executive with respect to (i), (ii) and
(iii) below, which is not cured by the Executive within thirty (30) days after
the Executive is provided with such written notice, or in the event that the
Executive shall, during the Term of this Agreement, (i) engage in any criminal
conduct constituting a felony and criminal charges are brought against the
Executive by a governmental authority, (ii) knowingly and willfully fail or
refuse to perform his duties and responsibilities in a manner consistent with
his position and other officers of similar position in the Corporation to the
reasonable satisfaction of the Board, and (iii) knowingly and willfully engage
in activities which would constitute a material breach of any term of this
Agreement, or any applicable policies, rules or regulations of the Corporation
or result in a material injury to the business condition, financial or
otherwise, results of operation or prospects of the Corporation, as determined
in good faith by the Board ("Cause"). For purposes of this Agreement,
termination pursuant to this Paragraph 4.1(c) shall be deemed a termination "for
cause".
For purposes of this Agreement, the Executive shall be deemed permanently
incapacitated in the event that the Executive shall, by reason of his physical
or mental disability, fail to substantially perform his usual and regular duties
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for the Corporation for a consecutive period of four (4) months or for six (6)
months in the aggregate in any eighteen (18) month period; provided, however,
that the Executive shall not be deemed permanently incapacitated unless and
until a physician, duly licensed to practice medicine and reasonably acceptable
to the Corporation and the Executive, shall certify in writing to the
Corporation that the nature of the Executive's disability is such that it will
continue as a substantial impediment to the Executive's ability to substantially
perform his duties hereunder.
(d) At the option of the Corporation within its sole and
complete discretion upon thirty (30) days' prior written notice.
4.2 Notwithstanding anything to the contrary contained herein:
(a) In the event that the Executive 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
Executive (or to the Executive's estate if no such beneficiaries shall have been
designated), a sum equal to one hundred percent (100%) of (i) his then current
annual Base Salary and (ii) his Target Cash Bonus for the then current fiscal
year, without interest, commencing one month following such death. The
Executive's estate shall retain all Options vested prior to his death. All
granted but unvested Options shall vest immediately upon the Executive's death
and be retained by the Executive's estate. To the extent that the Corporation
receives the proceeds on any life insurance on the life of the Executive (as
provided in Paragraph 4.2(d)) such proceeds shall be paid, promptly after
receipt, to the beneficiaries theretofore designated in writing by the Executive
(or the Executive's estate if no such beneficiaries shall have been designated)
to fund the obligations under this Paragraph 4.2(a) and shall reduce such
obligations on a dollar for dollar basis. The balance, if any, due the Executive
under this Paragraph 4.2(a) shall thereafter be paid in twelve (12) equal
monthly installments, without interest, commencing one month following the
Executive's death.
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(b) In the event that the employment of the Executive shall be
terminated by reason of the Executive becoming permanently incapacitated, then,
as additional consideration for his past services to the Corporation, he shall
receive one hundred percent (100%) of (i) his then current annual Base Salary
and (ii) his Target Cash Bonus for the then current fiscal year, each in equal
monthly installments, without interest, for a period of twelve (12) months from
the date of such termination. Such payments shall be in addition to all income
disability benefits, if any, which the Executive may receive from policies
provided by or through the Corporation, including state-required short term
disability. The Executive or, if applicable, his estate shall retain all Options
vested prior to his disability. All granted but unvested Options shall vest
immediately upon the Executive's disability and be retained by the Executive or,
if applicable, his estate.
(c) In the event of a termination of the Executive's employment
"for cause" as defined in Paragraph 4.1(c) above, the Executive shall not be
entitled to (i) any payments other than such compensation as shall have been
earned by him prior to the date of such termination and not paid as of the date
of such termination, or (ii) any Target Cash Bonus. Any and all Options granted
herein pursuant to Article 3 or otherwise, as of the date of such termination,
shall terminate and shall no longer vest. Nothing herein, however, shall alter
or impede the Executive's ability to exercise Options properly vested as of such
termination date in accordance with this Agreement and Exhibit A attached
hereto.
(d) In the event that the Corporation shall desire to fund the
death benefits payable under Paragraph 4.2(a) above with a policy or policies of
insurance on the life of the Executive or the disability benefits payable under
Paragraphs 4.2(b) and 4.2(c) above with a disability policy, the Executive shall
cooperate with the Corporation in obtaining such insurance policy(ies) and shall
submit to such medical examinations and execute such documents as may be
required in connection with the obtaining of such insurance.
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(e) In the event the Executive's employment is terminated at the
discretion of the Corporation pursuant to Paragraph 4.1(d), he will be paid, in
consideration for the non-compete provisions set forth in Section 5.2, two (2)
years current Base Salary in six equal quarterly installments during the one and
one-half (1-1/2) years following the termination of employment and shall retain
all Options which vested prior to the termination of his employment and there
shall vest immediately all granted but unvested Options on the date of
termination of his employment.
(f) In the event the Executive's employment is terminated and
Options vest as a result of or following such termination, such Option, and any
Options vesting under Paragraph 6.1(b) shall be exercisable only during the two
(2) years following the time they vested.
(g) In the event of any termination of the Executive's
employment pursuant to this Article 4 other than "for cause" as defined in
Paragraph 4.1(c), the Executive and/or his dependents and beneficiaries shall
continue to participate for a period of either twelve (12) months or one and
one-half (1-1/2) years following the termination of employment (to coincide with
the period Executive is receiving cash compensation pursuant to this Article 4)
in all medical insurance and related benefits provided by the Corporation on the
same basis as prior to the date of his termination.
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ARTICLE 5 - RESTRICTIVE COVENANTS
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5.1 CONFIDENTIAL INFORMATION.
(a) The Executive acknowledges that, because of his duties and
his position of trust under this Agreement, he 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 and Executive acknowledges that public
disclosure of such trade secrets and other confidential information will have an
adverse effect on the Corporation and its business. Except in connection with
the performance of his duties for the Corporation, the Executive agrees that he
will not, during or at any time after the Term of this Agreement, either
directly or indirectly, disclose to any person, entity, firm or corporation such
trade secrets or other confidential information, including, but not limited to,
any facts concerning the systems, methods, secret lists, procedures or plans
developed or used by the Corporation, and not to release, use, or disclose the
same except with the prior written consent of the Corporation. The Executive
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. All records, files, memorandums, reports, price lists, customer lists,
secret lists, documents, equipment, systems, methods, procedures and plans, and
the like, relating to the business of the Corporation, which the Executive shall
use or prepare or come into contact with, shall remain the sole property of the
Corporation. Upon termination of his employment by the Corporation or at any
time that the Corporation may so request, the Executive will surrender to the
Corporation all non-public papers, notes, reports, plans and other documents
(and all copies thereof) relating to the business of the Corporation which he
may then possess or have under his control.
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5.2 NON-COMPETE. The Executive acknowledges that (i) the services to
be performed by him under this Agreement are of a special, unique, extraordinary
and intellectual character; (ii) the Executive possess substantial technical and
managerial expertise and skill with respect to the Corporation's business; (iii)
the Corporation's business is national in scope and its products and services
are marketed throughout the nation; (iv) the Corporation competes with other
businesses that are or could be located in any part of the nation; (v) the
covenants and obligations of Executive under this Paragraph 5.2 are material
inducement and condition to the Corporation's entering into this Agreement and
performing its obligations hereunder; and (vi) the provisions of this Paragraph
5.2 are reasonable and necessary to protect the Corporation's business.
In consideration of the acknowledgments by the Executive, and in consideration
of the compensation and benefits (including the payments described in Sections
4.2(e) and 6.1(c)) to be paid or provided to Executive by the Corporation, the
Executive covenants that he will not, for a period of two (2) years following
the expiration or earlier termination of this Agreement, without the prior
written consent of the Corporation, directly or indirectly:
(a) knowingly solicit any business, in the same product or
business line or one that is closely related to that in which the Executive was
engaged during his employment, 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 or entity which is engaged in direct
or indirect competition (i.e., doing indirectly through others what the
Executive could not do directly) with the Corporation during a period of two (2)
years following the expiration or earlier termination of this Agreement.
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5.3 ENFORCEMENT. The provisions of Article 5 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 5.1 or 5.2 of this
Agreement by the Executive 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 Executive commits or threatens to commit any
such breach, the Corporation will have (a) the right and remedy to have the
provisions of Paragraphs 5.1 and 5.2 of this Agreement specifically enforced by
any court having equity jurisdiction, it being agreed that in any proceeding for
an injunction, and upon any motion for a temporary or permanent injunction, the
Executive'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 Executive 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
him as a result of any transactions constituting a breach of any of the
provisions of Paragraphs 5.1 and 5.2 of this Agreement, and the Executive 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.
If any covenant in this Article 5 is held to be unreasonable, arbitrary, or
against public policy, such covenant will be considered to be divisible with
respect to scope, time and geographic area, and such lesser scope, time, or
geographic area, or all of them, as the court of competent jurisdiction may
determine to be reasonable, not arbitrary, and not against public policy, will
be effective, binding, and enforceable against the Executive. The undertakings
of Article 5 shall survive the termination or cancellation of the Agreement or
of the Executive's termination.
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ARTICLE 6 - CHANGE OF CONTROL
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6.1 COMPENSATION. If prior to the expiration of the Term of this
Agreement, there is a Change of Control (defined in Paragraph 6.2 below) and
thereafter the Executive should resign his employment for Good Reason (as
defined in Paragraph 6.3 below), the Executive shall be entitled to the
following compensation:
(a) Continuation of all benefits, including without limitation
medical, dental and life insurance for one and one-half (1-1/2) years following
the date of termination, or until the date on which the Executive first becomes
eligible for insurance coverage of a similar nature provided by a firm that
employs him following termination of employment by the Corporation, whichever
occurs first.
(b) Immediate vesting of all granted but unvested Options held
by the Executive.
(c) An amount equal to the greater of (i) two (2) times (y) the
Executive's then current annual Base Salary and (z) the Executive's Target Cash
Bonus for the then current year and (ii) one million three hundred sixty
thousand dollars ($1,360,000), to be paid within sixty (60) days of termination
of employment. The parties agree that the amount of $800,000 payable pursuant to
this Paragraph 6.1(c) shall be treated as paid in consideration for the
non-compete provisions set forth in Paragraph 5.2 and shall be subject to the
enforcement provisions set forth in Paragraph 5.3, and the balance shall be
treated as severance.
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6.2 CHANGE OF CONTROL.
(a) For the purposes of this Agreement, a Change of Control
means (i) the direct or indirect sale, lease, exchange or other transfer of all
or substantially all (50% or more) of the assets of the Corporation to any
person or entity or group of persons or entities acting in concert as a
partnership or other group (a "Group of Persons"), (ii) the merger,
consolidation or other business combination of the Corporation with or into
another corporation with the effect that the shareholders of the Corporation, as
the case may be, immediately following the merger, consolidation or other
business combination, hold 50% or less of the combined voting power of the then
outstanding securities of the surviving corporation of such merger,
consolidation or other business combination ordinarily (and apart from rights
accruing under special circumstances) having the right to vote in the election
of directors, (iii) the replacement of a majority of the Board in any given year
as compared to the directors who constituted the Board at the beginning of such
year, and such replacement shall not have been approved by the Board, as the
case may be, as constituted at the beginning of such year, or (iv) a person or
Group of Persons shall, as a result of a tender or exchange offer, open market
purchases, privately negotiated purchases or otherwise, have become the
beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934, as amended) of securities of the Corporation representing 50% or
more of the combined voting power of the then outstanding securities of such
corporation ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors.
(b) If a Change of Control occurs prior to, but within two years
of, the expiration of the Term as set forth in Section 1.5 hereof, the Term
shall be extended, without any further action by the Corporation, the Board or
the Executive, until the second anniversary of the date on which the Change of
Control occurred.
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(c) The Executive hereby covenants and agrees that he shall
notify the Corporation in writing of any claim by the Internal Revenue Service
that any amount paid, distributed or treated as paid or distributed by the
Corporation pursuant to this Article 6 to or for the Executive's benefit would
be subject the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended, or any interest, penalties or additions to tax are incurred
by the Executive with respect to such excise tax (such excise tax, together with
any such interest, penalties and additions to tax, are hereinafter collectively
referred to as the "Excise Tax"). Such notification shall be given as soon as
practicable but not later than ten business days after the Executive is informed
in writing 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 Executive
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). In addition, the Executive shall:
(i) give the Corporation any information reasonably
requested by the Corporation relating to such claim,
(ii) take such action in connection with contesting such
claim as the Corporation shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Corporation,
(iii) cooperate with the Corporation in good faith so that
it may effectively contest such claim, and
(iv) permit the Corporation to control any proceeding
relating to such claim.
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(d) The Corporation hereby covenants and agrees that it shall
contest any claim described in Section 6.2(c) and shall bear and pay directly
all costs and expenses (but excluding any Excise Tax, which shall remain the
obligation of the Executive) incurred in connection with such contest. Without
limiting the foregoing, the Corporation shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and xxx for a refund or contest the
claim in any reasonable manner, and the Executive 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, the Corporation shall consult with the
Executive and his counsel in connection with, and provide the Executive and his
counsel with status reports of, such proceedings; and further provided that (i)
the Corporation's control of the contest shall be limited to issues relating to
the Excise Tax and (ii) any extension of the statute of limitations relating to
payment of taxes for Executive's taxable year with respect to which such
contested amount is claimed to be due is limited solely to such contested
amount. The Executive shall not be entitled to settle any issue raised by the
Internal Revenue Service or any other taxing authority with respect to the
Excise Tax without the prior written consent of the Corporation.
(e) In the event that a valuation is necessary to support the
position that the tax claimed is not due, in whole or in part, in connection
with any such dispute or contest, such valuation will be determined through an
independent third-party appraisal of the Corporation's selection, and the
expenses incurred in obtaining such appraisal will be borne by the Corporation.
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6.3 GOOD REASON. The Executive shall have Good Reason for
terminating his employment with the Corporation under this Agreement if one or
more of the following occurs:
(a) the failure of the Corporation, its successor or any Group
of Persons acquiring substantially all of the assets of the Corporation to
assume any and all terms of this Agreement;
(b) a material breach of this Agreement by the Corporation, its
successor or any Group of Persons acquiring substantially all of the assets of
the Corporation that remains uncured for a period of thirty (30) days after the
Executive provides notice of such material breach in the manner set forth in
Paragraph 7.5.
(c) an involuntary change in the Executive's status or position
with the Corporation which constitutes a demotion from the Executive's then
current status or position and a material change in the nature or scope of
powers, authority or duties inherent in such position;
(d) layoff or involuntary termination of the Executive's
employment, except in connection with the termination of the Executive's
employment for Cause or as a result of the non-renewal of this Agreement or of
the Executive's disability or death;
(e) a reduction by the Corporation in the Executive's Base
Salary, or material change in Executive's bonus structure;
(f) any action or inaction by the Corporation that would
adversely affect the Executive's continued participation in any Benefit Plan on
at least as favorable basis as was the case at the time of such action or
inaction, or that would materially reduce the Executive's benefits in the future
under the Benefit Plan or deprive him of any material benefits that he then
enjoyed, except to the extent that such action or inaction by the Corporation
(i) is also taken or not taken, as the case may be, in respect of all employees
generally, (ii) is required by the terms of any Benefit Plan as in effect
immediately before such action or inaction; or (iii) is necessary to comply with
applicable law or to preserve the qualification of any Benefit Plan under
Section 401(a) of the Code; or
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(g) a change of the principal work location in excess of a fifty
(50) mile radius from 0000 X.X. Xxxxxx Xxxxx, Xxxxxx, Xxxxxxx.
6.4 ARBITRATION. In the event that the Executive reasonably believes
that he has Good Reason to terminate his employment in reliance upon Section 6.3
hereof, the Executive shall notify the Corporation in writing of such Good
Reason to terminate his employment. If the Corporation disagrees with the
Executive's belief that he has Good Reason to terminate his employment in
reliance upon Section 6.3 hereof, such unresolved dispute or controversy arising
thereunder or in connection therewith shall be settled exclusively by
arbitration conducted in accordance with the rules of the American Arbitration
Association then in effect in Xxxxxx County, Florida. The arbitrators shall not
have the authority to add to, detract from, or modify any provision hereof nor
to award punitive damages to any injured party. A decision by a majority of the
arbitration panel shall be final and binding on whether "Good Reason" exists.
Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The direct expense of any arbitration proceeding shall be borne by
the Corporation. Each party shall bear its own counsel's fees and expenses.
ARTICLE 7 - MISCELLANEOUS
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7.1 SEVERABILITY. 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.
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7.2 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE. The Executive
represents and warrants that he has made no commitment of any kind whatsoever
inconsistent with the provisions of this Agreement and that he is under no
disability of any kind to enter into this Agreement and to perform all of his
obligations hereunder.
7.3 BINDING EFFECT. 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 Executive, cannot be assigned by
him. 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 Executive.
7.4 JURISDICTIONAL CONSENT. Except as specifically set forth herein,
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 him at his address set forth on Page 1 hereof.
7.5 NOTICES. 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 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.
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7.6 WAIVER. 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.
7.7 ENTIRE AGREEMENT/GOVERNING LAW. This Agreement constitutes the
entire agreement and understanding between the Corporation and the Executive
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.
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[SIGNATURE PAGE TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT]
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 Xxxxxx
------------------
Xxxxxx Xxxxxx
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------
Xxxxxxx Xxxxxx, Jr., Director
/s/ Xxxxxxx Xxxxxxxxxx
----------------------
XXXXXXX XxXXXXXXXX
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