Exhibit 10.3
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), is made and
entered into this 7th day of December, 2000, by and between THE BOC GROUP, INC.,
a Delaware corporation, acting through its BOC Xxxxxxx division ("Buyer") and
NUCO2 Inc., a Florida corporation (the "Company").
R E C I T A L:
The Company desires to sell and Buyer desires to purchase from the
Company, on the terms and subject to the conditions set forth in this Agreement,
One Million One Hundred Eleven Thousand One Hundred Eleven (1,111,111) newly
issued shares (the "Common Shares") of Common Stock, par value $0.001 per share,
of the Company ("Common Stock") in exchange for the Common Share Purchase Price
(as defined herein) and other agreements, obligations and consideration as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and promises
contained herein, the parties agree as follows:
ARTICLE 1 PURCHASE OF COMMON SHARES
1.1 Purchase of Common Shares. Upon the terms and subject to the
conditions of this Agreement and in reliance upon the representations,
warranties and covenants contained herein, Buyer agrees to purchase the Common
Shares from the Company for the Common Share Purchase Price, and the Company
agrees to sell and issue the Common Shares to Buyer at Closing.
1.2 Purchase Price for Common Shares. The purchase price of the
Common Shares (the "Common Share Purchase Price") shall be Ten Million Dollars
($10,000,000) which shall be payable to the Company by Buyer at Closing.
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ARTICLE 2 THE CLOSING
2.1 Closing. The Closing of the transaction shall occur at the
offices of the Buyer on the date hereof or at such other time and/or place as
may be mutually agreed upon by the parties (the "Closing Date"). All component
parts of the transaction shall be deemed to occur simultaneously on the Closing
Date.
2.2 Closing Deliveries by Company to Buyer. At the Closing, Company
shall deliver or cause to be delivered to Buyer the following:
(a) An amendment (the "Amendment") to the Special Warrant to
Purchase Common Stock of the Company (No. W-9), dated May 1, 1997 (the "Original
Warrant"), executed by the Company in the form attached hereto as Exhibit A
(together with the Original Warrant, the "Warrant");
(b) A certificate evidencing the Common Shares being purchased
by the Buyer, registered in the name of Buyer; and
(c) A certificate or confirmation that the Company is in
existence and good standing in the State of Florida on and as of the Closing
Date.
2.3 Delivery by Buyer to Company. At the Closing, Buyer shall
deliver or cause to be delivered to Company the following:
(a) The Common Share Purchase Price; and
(b) The Amendment executed by Buyer in the form attached
hereto as Exhibit A.
2.4 Execution of Additional Closing Agreements. At the Closing, the
parties shall execute, acknowledge and deliver, or cause to be executed,
acknowledged or delivered, such other instruments or
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documents as may be reasonably necessary to carry out the transaction
contemplated by this Agreement.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF COMPANY
The Company hereby represents and warrants to Buyer as follows:
3.1 Existence. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida and has all
requisite corporate power and authority to own its properties and assets and to
carry on its business as it is now being conducted and as proposed to be
conducted. Each of the Company and its material domestic subsidiaries is duly
qualified to transact business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the properties owned or leased by
it or the nature of its business makes such qualification necessary, except for
any such failures to so qualify or be in good standing that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. For purposes of this Agreement, "Material Adverse Effect" shall
mean a material adverse effect on (i) the business, assets, property, operations
or condition, financial or otherwise, of the Company and its subsidiaries taken
as a whole or (ii) the ability of the Company to perform any of its obligations
under this Agreement or the transaction contemplated hereby.
3.2 No Breach. None of the execution and delivery of this Agreement,
the Common Shares and the Amendment, the consummation of the transactions herein
and therein contemplated and compliance with the terms and provisions hereof and
thereof will conflict with or result in a breach of, or require any consent
under, the charter or by-laws of the Company or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority, or any agreement or instrument to which the Company or
any of its subsidiaries is a party or by which any of them is bound or to which
any of them is subject, or constitute a default under any such agreement or
instrument, which conflict, breach, failure to obtain consent or default would
have a Material Adverse Effect.
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3.3 Corporate Action. The Company has all necessary corporate power
and authority to execute, deliver and perform its obligations under this
Agreement; the execution, delivery and performance by the Company of this
Agreement, have been duly authorized by all necessary corporate action
(including all required shareholder action) on the part of the Company; this
Agreement has been duly executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company entitled to the benefits
provided herein, except as enforcement may be limited by bankruptcy, insolvency
or other similar laws affecting creditors' rights generally, and by general
principles of equity (regardless of whether enforcement is sought at equity or
in law), the Common Shares shall, when issued and delivered pursuant to this
Agreement will be duly and validly issued, fully paid and nonassessable, and the
Common Stock underlying by the Warrant (the "Warrant Shares") shall, when issued
and delivered in accordance with the terms of the Warrant, be duly and validly
issued, fully paid and nonassessable.
3.4 Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental authority are necessary for the
execution, delivery or performance by the Company of this Agreement or for the
validity or enforceability hereof. Any such action required to be taken as a
condition to the execution and delivery of this Agreement, the issuance of the
Common Shares and the Amendment, has been duly taken by all such governmental
authorities or other persons, as the case may be.
3.5 Investment Company Act. Neither the Company nor any of its
subsidiaries is an "investment company," or a company "controlled by" an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
3.6 Public Utility Holding Company Act. Neither the Company nor any
of its subsidiaries is a "holding company," or an "affiliate" of a "holding
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company" or a "subsidiary company" of a "holding company," within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
3.7 Capitalization.
(a) Upon the issuance of the Common Shares under this
Agreement, the total number of shares of capital stock which the Company has
authority to issue and the outstanding shares of the Company will be as set
forth in Schedule 3.7(a) hereto. Upon the issuance of the Common Shares under
this Agreement, the Company shall not have outstanding any stock or securities
convertible into or exchangeable for any shares of capital stock nor shall it
have outstanding any rights to subscribe for or to purchase, or any options for
the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
any capital stock or stock or securities convertible into or exchangeable for
any capital stock other than as listed on Schedule 3.7(a).
(b) There is not in effect on the date hereof any agreement by
the Company pursuant to which any holders of securities of the Company have a
right to cause the Company to register such securities under the Securities Act
of 1933, as amended (the "Securities Act") other than as set forth on Schedule
3.7(b).
(c) The Warrant Shares have been authorized and adequately
reserved in contemplation of the exercise of the Warrant and the issuance
thereof will not have been subject to any preemptive rights or made in violation
of any applicable law.
3.8 SEC Documents; Financial Statements. The Company has filed in a
timely manner all documents that the Company was required to file with the
Securities and Exchange Commission (the "Commission") under Sections 13, 14(a)
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since its initial public offering. As of their respective filing dates,
all documents filed by the Company with the Commission ("SEC Documents")
complied in all material respects with
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the requirements of the Exchange Act or the Securities Act, as applicable. None
of the SEC Documents as of their respective dates contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents (the "Financial
Statements") comply as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the
Commission with respect thereto. The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis and fairly present the consolidated financial position of the Company and
any of its subsidiaries at the dates thereof and the consolidated results of
their operations and consolidated cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal, recurring
adjustments). Except as set forth or reflected in the SEC Documents filed prior
to the date hereof, the Company does not have any liabilities or obligations of
any nature (whether accrued, absolute, contingent, unasserted or otherwise) that
individually or in the aggregate would be expected to have a Material Adverse
Effect.
3.9 Provided Information. To the knowledge of the Company, all
written information (excluding information of a general economic nature and
financial projections) concerning the Company and the transactions contemplated
hereby that has been prepared by or on behalf of the Company or any of the
Company's authorized representatives and that has been made available to Buyer
or any of its authorized representatives in connection with the issuance and
sale of the Common Shares, when taken as a whole, was, at the time made
available, correct in all material respects and did not, at the time made
available, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein not
misleading in light of the circumstances under which such statements were made.
All financial projections concerning the Company that have been prepared by or
on behalf of the Company or any of the Company's authorized representatives and
that have been made
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available to Buyer or any of its authorized representatives in connection with
the issuance and sale of the Common Shares have been, and at the time made
available will be, reasonably prepared on a basis reflecting the best currently
available estimates and judgments of the Company's management as to the future
financial performance of the Company and the individual business segments
thereof.
3.10 Material Adverse Change. Except as disclosed in the SEC
Documents, since September 30, 2000, there has not been any event, occurrence or
development of a state of circumstances or facts that has had, or could have
reasonable been expected to have, (i) a Material Adverse Effect or (ii) a
material adverse effect on the ability of the Company to perform its obligations
under this Agreement.
3.11 Litigation. There are not any (a) outstanding judgments against
or affecting the Company or any of its subsidiaries, (b) proceedings pending or,
to the knowledge of the Company, threatened against or affecting the Company or
any of its subsidiaries or (c) investigations by any governmental authority that
are, to the knowledge of the Company, pending or threatened against of affecting
the Company or any of its subsidiaries that (i) in any manner challenge or seek
to prevent, enjoin, alter or materially delay the issuance of the Common Shares
or (ii) if resolved adversely to the Company or any subsidiary, would have,
individually or in the aggregate, a Material Adverse Effect.
3.12 Permits and Licenses. The Company and its subsidiaries have
obtained all governmental permits, licenses, franchises and authorizations
required for the Company and its subsidiaries to conduct their respective
businesses as currently conducted, except for those of which the failure to
obtain would not have a Material Adverse Effect.
3.13 Properties.
(a) Each of the Company and its subsidiaries has good title
to, or valid leasehold interests in, all its real and personal property material
to its business, except (i) as set forth in Schedule 3.13 and (ii)
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for minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended
purposes.
(b) Each of the Company and its subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Company and its subsidiaries, to the best of the Company's knowledge, does not
infringe upon the rights of any other person or entity, except for any such
infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
3.14 Environmental Matters. Except with respect to any matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, neither the Company nor any of its subsidiaries (i)
has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability. As used in this Agreement,
"Environmental Laws" means all Federal, state, local and foreign statutes and
codes or regulations, rules or ordinances issued, promulgated, or approved
thereunder, now or hereafter in effect (including, without limitation, those
with respect to asbestos or asbestos containing material), relating to pollution
or protection of the environment and relating to public health and safety,
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials, into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata), or
(ii) the manufacture, processing, distribution, use generation, treatment,
storage, disposal, transport or handling of any hazardous materials, and (iii)
underground storage tanks and related piping, and emissions, discharges and
releases or threatened releases therefrom, such Environmental Laws to include,
without limitation, (i) the Clean Air Act (42 U.S.C.ss.7401 et seq.), (ii) the
Clean Water Act (33 U.S.C.ss.1251 et seq.), (iii) the Resource Conservation and
Recovery Act (42 U.S.C.ss.6901 et seq.), (iv)
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the Toxic Substances Control Act (15 U.S.C.ss.2601 et seq.) and (v) CERCLA, each
as amended. As used in this Agreement, "Environmental Liability" means any
liability, contingent or otherwise (including any liability for damages, costs
of environmental remediation, fines, penalties or indemnities), of the Company
or any subsidiary directly or indirectly resulting from or based upon (i)
violation of any Environmental Law, (ii) the generation, use, handling,
transportation, storage, treatment or disposal of any hazardous materials, (iii)
exposure to any hazardous materials, (iv) the release or threatened release of
any hazardous materials into the environment or (v) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
3.15 Compliance with Laws and Agreements. Each of the Company and
its subsidiaries is in compliance with all laws, regulations and orders of any
governmental authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
3.16 Taxes. Each of the Company and its subsidiaries has timely
filed or caused to be filed all tax returns and reports required to have been
filed and has paid or caused to be paid all federal, state and foreign taxes,
assessments, customs duties or other governmental charge, levy or assessment
upon assets revenues income or profits (collectively, "Taxes") required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or such subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
3.17 ERISA.
(a) (i) Except as set forth in Schedule 3.17, neither the
Company nor any ERISA Affiliate maintains or contributes to, or has maintained
or contributed to, any Plan that is an ERISA Plan and (ii)
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neither the Company nor any of its subsidiaries maintains or contributes to, or
has maintained or contributed to, any Plan that is an "Executive Arrangement"
(as that term is used in the definition of "Plan");
(b) Each Plan has at all times been maintained, by its terms
and in operation, in accordance with all applicable laws, except where such
noncompliance (when taken as a whole) would not have a Material Adverse Effect;
(c) Neither the Company nor any of its subsidiaries is
currently making, nor has in the last 6 years been obligated to make,
contributions (directly or indirectly) to a Multiemployer Plan, nor is it
currently nor will it become subject to any liability (including withdrawal
liability), tax or penalty whatsoever to any person whomsoever with respect to
any Plan including, but not limited to, any tax, penalty or liability arising
under Title I or Title IV or ERISA or Chapter 43 of the Internal Revenue Code of
1986, as amended (the "Code"), except where such liabilities (when taken as a
whole) would not have a Material Adverse Effect; and
(d) The Company and each ERISA Affiliate has made full and
timely payment of all amounts (i) required to be contributed under the terms of
each Plan and applicable law and (ii) required to be paid as expenses of each
Plan. No Plan has an "amount of unfunded benefit liabilities" (as defined in
Section 4001(a)(18) of ERISA).
(e) As used in this Agreement, "ERISA" means the Employee
Retirement Income Security Act of 1974, as amended from time to time and the
rules and regulations promulgated thereunder.
(f) As used in this Agreement, "ERISA Affiliate" means any
trade or business (whether or not incorporated) that, together with the Company,
is treated as a single employer under Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as
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a single employer under Section 414 of the Code.
(g) As used in this Agreement, "ERISA Event" means: (i) any
"reportable event", as defined in Section 4043 of ERISA or the regulations
issued thereunder with respect to a Plan (other than an event for which the
30-day notice period is waived); (ii) the existence with respect to any Plan of
an "accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (iii) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan; (iv) the
incurrence by the Company or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (v) the receipt
by the Company or any ERISA Affiliate from the PBGC or a plan administrator of
any notice relating to an intention to terminate any Plan or Plans or to appoint
a trustee to administer any Plan; (vi) the incurrence by the Company or any of
its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (vii) the receipt by the
Company or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
(h) As used in this Agreement, "ERISA Plan" means any employee
pension benefit plan (other than a Multiemployer Plan) subject to the provisions
of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which the Company or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
(i) As used in this Agreement, "Multiemployer Plan" means a
multiemployer plan as defined in Section 4001(a)(3) of ERISA as to which the
Company, any Subsidiary or any ERISA
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Affiliate is obligated to make, has made, or will be obligated to make
contributions on behalf of participants who are or were employed by any of them.
(j) As used in this Agreement, "PBGC" means the Pension
Benefit Guaranty Corporation referred to and defined in ERISA and any successor
entity performing similar functions.
(k) As used in this Agreement, "Plan" means any employee
benefit plan, program, arrangement, practice or contract, maintained by or on
behalf of the Company or an ERISA Affiliate, which provides benefits or
compensation to or on behalf of employees or former employees, whether formal or
informal, whether or not written, including, but not limited to, the following
types of plans:
(i) Executive Arrangements. Any bonus, incentive
compensation, stock option, deferred compensation, commission, severance,
"golden parachute", "rabbi trust", or other executive compensation plan,
program, contract arrangement or practice;
(ii) ERISA Plans. Any "employee benefit plan" as defined
in ERISA, including, but not limited to, any defined benefit pension plan,
profit sharing plan, money purchase pension plan, savings or thrift plan, stock
bonus plan, employee stock ownership plan, Multiemployer Plan, or any plan,
fund, program, arrangement or practice providing for medical (including
post-retirement medical), hospitalization, accident, sickness, disability, or
life insurance benefits; and
(iii) Other Employee Fringe Benefits. Any stock
purchase, vacation, scholarship, day care, prepaid legal services, severance pay
or fringe benefit plan, program, arrangement, contract or practice.
(l) As used in this Agreement, "Withdrawal Liability" means
liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
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3.18 Subsidiaries. Set forth in Schedule 3.18 is a complete and
correct list of all of the subsidiaries of the Company as of the date hereof
together with, for each such subsidiary, (i) the jurisdiction of organization of
such subsidiary, (ii) each person or entity holding ownership interests in such
subsidiary and (iii) the nature of the ownership interests held by each such
person or entity and the percentage of ownership of such subsidiary represented
by such ownership interests. Except as set forth in Schedule 3.18, each of the
Company and its subsidiaries owns, free and clear of liens, charges or
encumbrances of any kind or nature, and has the unencumbered right to vote, all
outstanding ownership interests in each person or entity shown to be held by it
in Schedule 3.18, and all of the issued and outstanding capital stock of each
such person organized as a corporation is validly issued, fully paid and
nonassessable and there are no outstanding equity rights with respect to such
person or entity.
3.19 No Burdensome Restrictions. Neither the Company nor any of its
subsidiaries is party to any contract or agreement that would result in any
burdensome restrictions that might reasonably be expected have a Material
Adverse Effect, including, but not limited to, any collective bargaining
agreements.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Accredited Investor. Buyer hereby represents and warrants to the
Company as of the Closing Date the following:
(a) Buyer is purchasing for its own account, and not with a
view to the resale or distribution of the Common Shares or any part thereof, and
Buyer is prepared to bear the economic risk of retaining the Common Shares for
an indefinite period, all without prejudice, however, to the right of Buyer at
any time lawfully to sell or otherwise to dispose of all or any part of the
Common Shares, (b) Buyer is an "accredited investor" (as defined in Rule 501 of
Regulation D promulgated under the Securities Act), (c) Buyer is experienced in
evaluating and investing in securities, and understands that the Common Shares
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will be restricted securities, and that a legend to that effect shall be placed
on the Common Shares, and (d) the acquisition, holding and any transfer of any
restricted securities by Buyer shall be in compliance with all laws applicable
to Buyer.
4.2 Securities Act Compliance. Buyer understands that the Company
has not registered or qualified the Common Shares under the Securities Act or
any applicable state securities laws, and Buyer agrees that the Common Shares
shall not be sold or offered for sale without registration under the Securities
Act or the availability of an exemption therefrom.
4.3 Transfers of Common Shares Pursuant to Registration Statements
and Rule 144, Etc. The Common Shares may be offered or sold by the holder
thereof pursuant to (a) an effective registration statement under the Securities
Act, (b) to the extent applicable, Rule 144 or (c) any other applicable
exemption from the Securities Act.
4.4 Notice of Certain Transfers. If any holder of any Common Shares
desires to transfer such Common Shares other than pursuant to an effective
registration statement, Rule 144 under the Securities Act or in accordance with
this Agreement, such holder shall deliver to the Company at least seven business
days prior written notice with respect to the proposed transfer, together with
an opinion (at such holder's expense) of counsel reasonably satisfactory to the
Company, to the effect that an exemption from registration under the Securities
Act is available and specifying the applicable exemption.
4.5 Restrictive Legend. Unless and until otherwise permitted by
applicable law and this Agreement, each certificate for the Common Shares issued
under this Agreement, each certificate for any Common Shares issued to any
subsequent transferee of any such certificate, shall be stamped or otherwise
imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
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REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, AND ACCORDINGLY, SUCH SECURITIES MAY NOT BE TRANSFERRED, SOLD
OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE REGISTRATION OR
QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR
APPLICABLE EXEMPTIONS THEREFROM."
4.6 Removal of Restrictive Legend. The restrictions imposed by
Paragraph 4.5 upon the transferability of the Common Shares shall cease and
terminate as to any particular Common Share when such Common Share shall have
been effectively registered under the Securities Act and sold by the holder
thereof in accordance with such registration or sold under and pursuant to Rule
144 or is eligible to be sold pursuant to Paragraph (k) of Rule 144. Whenever
the restrictions imposed by Paragraph 4.5 shall terminate as to any Common Share
as hereinabove provided, the holder thereof shall, upon written request, be
entitled to receive from the Company, without expense, a new certificate
evidencing such Common Share not bearing the restrictive legend otherwise
required to be borne by a certificate evidencing such Common Share.
ARTICLE 5 COVENANTS OF THE PARTIES
5.1 Board Seat. At Closing, the Company will cause one person
designated by Buyer to be appointed to the Board of Directors of the Company.
Thereafter, provided that Buyer owns at least 1,000,000 of the issued and
outstanding shares of Common Stock, Buyer shall continue to have the right to
cause the Company to appoint Buyer's designee to the Board of Directors of the
Company.
5.2 Standstill.
(a) For a period of three years from the Closing, Buyer will
not acquire any shares of Common Stock other than the Common Shares and the
Warrant Shares without the prior written consent
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of the Board of Directors of the Company; provided, however, Buyer may acquire
at any time, in the open market or otherwise, additional shares of Common Stock
up to a 19.99% ownership interest in the Company without any prior written
consent.
(b) For a period of three years from the Closing, Buyer will
not, nor will it permit any of its affiliates (as such term is used in Rule
12b-2 promulgated under the Exchange Act) to, (i) seek representation on the
Board of Directors of the Company in excess of one seat, (ii) participate in a
proxy contest, (iii) join a group for purposes of Section 13(d) of the Exchange
Act, or (iv) otherwise attempt to control the Company (other than through its
one seat on the Board of Directors of the Company).
(c) Upon the occurrence of any of the following "Significant
Events" the provisions of Paragraphs 5.2(a) and 5.2(b) shall terminate: (i) the
acquisition by any person or group of beneficial ownership of Voting Securities
representing 20% or more of the then outstanding Voting Securities, (ii) the
announcement or commencement by any person or group of a tender or exchange
offer to acquire Voting Securities which, if successful, would result in such
person or group owning, when combined with any other Voting Securities owned by
such person or group, 20% or more of the then outstanding Voting Securities,
(iii) the Company entering into, or otherwise determines to seek to enter into,
any merger, sale or other business combination transaction pursuant to which the
outstanding shares of Common Stock of the Company would be converted into cash
or securities of another person or group, or 20% or more of the then outstanding
shares of Common Stock would be owned by persons other than the current holders
of shares of Common Stock, or which would result in all or a substantial portion
of the Company's assets being sold to any person or group, or (iv) five of the
current directors of the Board of Directors of the Company shall cease to be
directors of the Company. As used in this Agreement, "Voting Securities" means
at any time shares of any class of capital stock of the Company which are then
entitled to vote generally in the election of directors; provided that for
purposes of this definition any securities which at such time are convertible or
exchangeable into or exercisable for shares of Common Stock shall be
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deemed to have been so converted, exchanged or exercised. The restrictions set
forth in Paragraphs 5.2(a) and 5.2(b) shall terminate with respect to any Common
Shares sold or transferred by Buyer to an unaffiliated third party.
5.3 Voting. For a period of two years from the Closing, Buyer will
vote all shares of Common Stock owned by Buyer for each person nominated to be a
director of the Company by the Board of Directors of the Company. Such voting
obligation shall terminate in the event of a Significant Event. Buyer shall have
no other restrictions on voting. The restrictions set forth in this Paragraph
5.3 shall terminate with respect to any Common Shares sold or transferred by
Buyer to an unaffiliated third party.
5.4 Drag Along. For a period of two years from the Closing, in the
event that the Company and an independent third party enter into a definitive
agreement whereby such third party agrees to commence an all cash public tender
offer to all shareholders of the Company (on terms that the Board of Directors
of the Company approves and recommends to the shareholders of the Company) for
all the shares of the Company at a minimum price of $17 per share with a
provision that the consummation of the tender offer is subject to the third
party acquiring at least 50% plus Buyer's percentage share ownership of the
Voting Securities of the Company, the Buyer will tender all shares of Common
Stock owned by Buyer to such third party on the same terms and conditions as
offered to all other shareholders of the Company; provided that the other
directors of the Company agree to tender all Voting Securities owned by them to
such third party upon the same terms and conditions; and provided, further that
Buyer may withdraw its tender in the event that the Board of Directors of the
Company discontinues its recommendation of the tender offer to the shareholders
of the Company. For purposes of this provision an independent third party shall
not include the Company or any of its affiliates or any existing shareholder or
group of shareholders that currently hold in the aggregate greater than 5% of
the Voting Securities of the Company. The restrictions set forth in this
Paragraph 5.4 shall terminate with respect to any Common Shares sold or
transferred by Buyer to an unaffiliated third party.
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ARTICLE 6 REGISTRATION UNDER THE SECURITIES ACT OF 1933
6.1 Incidental (Piggyback) Registration. Whenever the Company, at
any time or from time to time, proposes to file a registration statement to
register any of its securities, whether for sale by the Company or its
stockholders, under the Securities Act on any form (other than a registration
statement on Form S-4 for securities to be offered in a transaction of the type
referred to in Rule 145 under the Securities Act or on Form S-8 for securities
offered to employees of the Company pursuant to any employee benefit plan), and
the registration form to be used may be used for the registration of the sale of
restricted securities, the Company will give prompt written notice, not less
than 10 days nor more than 90 days prior to the filing of the registration
statement, to each registered holder of the Common Shares (each, a "Holder") and
will include in such registration statement such number of Common Shares held by
each Holder which the Holder requests to be included in such registration for
sale by such Holder; provided, however, that (a) the Company shall not be
required to include any Common Shares in any registration pursuant to this
Paragraph 6.1 unless the Holder or Holders of at least a majority of the Common
Shares and restricted securities, taken together, shall have requested to
include shares in such registration as herein provided, and (b) the Company
shall not be required to include a Holder's Common Shares in a registration
statement pursuant to this Paragraph 6.1 if all of such Common Shares may be
sold or transferred pursuant to Rule 144 of the Act. Any Holder's request for
inclusion of Common Shares in a proposed registration shall be made within 10
days of receipt of written notice from the Company. The Company shall use its
best efforts to cause any registration statement under this Paragraph 6.1 to
promptly become effective and to remain effective for at least nine months or,
if sooner, until all Common Shares included in such registration have been sold
by the Holder(s) thereof. In the event that the proposed registration by the
Company is, in whole or in part, an underwritten public offering of securities
of the Company, the Company shall not be required to include any Common Shares
in such underwriting unless the Holders of the Common Shares to be
18
included agree to accept the offering on the same terms and conditions as the
shares of Common Stock, if any, otherwise being sold through underwriters under
such registration; and further provided, however, that if the managing
underwriter advises the Company that the inclusion of all Common Shares proposed
to be included by the Holders in the underwritten public offering (the "Proposed
Shares"), together with the other shares of Common Stock proposed to be included
therein by persons other than the Company (the "Other Shares"), would, in the
managing underwriter's reasonable judgment, materially jeopardize the success of
the Company's offering, then the Company shall be required to include in the
offering (in addition to the number of shares to be sold by the Company) only
that aggregate number (the "Allowed Number") of Proposed Shares and Other Shares
that the managing underwriter reasonably believes will not materially jeopardize
the success of the Company's offering, and the number of Proposed Shares and
Other Shares to be included in such underwritten public offering shall be
reduced pro rata to the extent required such that the sum of the Proposed Shares
to be included in the offering and the Other Shares to be included in the
offering equals the Allowed Number.
6.2 Registration Procedures. The following provisions will be
applicable to any registration statement relating to Common Shares pursuant to
this Article 6:
(a) Each Holder whose Common Shares are to be included in the
registration statement (each, a "Seller") will furnish the Company with such
appropriate information relating to the Seller as the Company reasonably
requests in writing. Following the effective date of the registration statement,
the Company will upon the request of any Seller promptly supply such number of
prospectuses meeting the requirements of the Securities Act as may be reasonably
requested by the Seller to permit the Seller to make a public offering of all
Common Shares of the Seller included in the registration statement. The Company
will use its best efforts to qualify the Common Shares for
19
sale in such states as the Sellers may reasonably designate; provided that in no
event will the Company be required to file a general consent to service of
process.
(b) The Company will indemnify and hold harmless each Seller,
and each underwriter within the meaning of the Securities Act, if any, who may
purchase Common Shares from or sell Common Shares for any Seller, and the
directors, officers, employees and agents of the Seller and any such
underwriter, and each person, if any, who controls any such Seller or
underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and expenses, including, without limitation, attorneys' fees and expenses
(collectively, "Damages") arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or any related prospectus or preliminary prospectus, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such Damages arise out of or are based upon an untrue statement or
alleged untrue statement or omission or alleged omission based upon information
furnished in writing to the Company by the Seller or the underwriter, as the
case may be, expressly for use in the registration statement; provided, however,
that the Company will not be required to indemnify any Seller or underwriter or
controlling person with regard to a registration statement unless the Seller or
underwriter, as the case may be, agrees to indemnify the Company, its directors,
each officer signing the registration statement and each person, if any, who
controls the Company within the meaning of the Securities Act from and against
any and all Damages caused by any untrue statement or alleged untrue statement
of a material fact contained in a registration statement or any related
prospectus or preliminary prospectus pertaining to the Common Shares, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the
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statements therein not misleading, but only to the extent such Damages arise out
of an untrue statement or alleged untrue statement or omission or alleged
omission based upon information relating to such Seller or underwriter, as the
case may be, and furnished in writing to the Company by the Seller or
underwriter expressly for use in the registration statement or any related
prospectus or preliminary prospectus.
6.3 Expenses. All costs and expenses incident to the registrations
and qualifications required by this Article 6 shall be borne by the Company,
except that (i) any underwriting discounts attributable to Common Shares sold by
the Sellers shall be borne by the Sellers of such Common Shares, and (ii) the
Holders shall bear the costs and expenses of their counsel.
ARTICLE 7 GENERAL PROVISIONS
7.1 Indemnification. The parties to this Agreement will indemnify,
defend, and hold harmless the other party against and in respect of any and all
claims, demands, actions, costs, damages, losses, expenses, obligations,
liabilities, and causes of actions, including costs of court and reasonable
attorneys' fees, that the other party incurs or suffers, which arise, result
from, related to any breach of any of such party's representations, warranties,
covenants, or agreements under this Agreement.
7.2 Amendment and Waiver. No amendment or waiver of any provision of
this Agreement shall in any event be effective unless the same shall be in
writing and signed by the parties hereto, and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
7.3 Applicable Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed entirely within Delaware.
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7.4 Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
7.5 Parties in Interest. This Agreement shall bind and inure to the
benefit of the parties named herein and their respective heirs, successors and
assigns.
7.6 Expenses. Each party hereto will pay its own expenses in
connection with the transactions contemplated hereby.
7.7 Entire Transaction. This Agreement and any other agreements
delivered pursuant hereto or thereto constitute the entire understanding among
the parties with respect to the transaction contemplated hereby and supersede
all other agreements and understandings among the parties, both written and
oral.
7.8 Headings. The Paragraph and other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.9 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of the parties under this Agreement would not be
materially and adversely affected thereby, such provision shall be fully
separable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
the remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid or unenforceable provision or
by its severance herefrom, and, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible, and the parties
hereto request the
22
court to whom disputes relating to this Agreement are submitted to reform the
otherwise illegal, invalid or unenforceable provision in accordance with this
Paragraph 7.9.
7.10 Waiver. No waiver by any party of the performance of any
provision, condition or requirement herein shall be deemed to be a waiver of, or
in any manner release the other party from, performance of any other provision,
condition or requirement herein, nor deemed to be a waiver of, or in any manner
release the other party from, future performance of the same provision,
condition or requirement; nor shall any delay or omission by any party to
exercise any right hereunder in any manner impair the exercise of any such right
accruing to it thereafter.
7.11 No Third-Party Beneficiaries. Nothing contained in this
Agreement shall be construed to give any person other than Buyer, any successor
to Buyer, and the Company any legal or equitable right, remedy or claim under or
with respect to this Agreement.
7.12 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be sent by registered or
certified mail, postage prepaid, overnight courier or by facsimile as follows:
If to Company, to:
NUCO2 Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: President
Facsimile Number: 000-000-0000
with a copy to:
NUCO2 Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile Number: 000-000-0000
23
If to Buyer, to:
The BOC Group, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Facsimile Number: 000-000-0000
with a copy to:
The BOC Group, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Vice President
Facsimile Number: 000-000-0000
Any party may change its address for receiving notice by written notice given to
the others named above.
7.13 Press Releases. No party will issue any press release regarding
the transaction contemplated by this Agreement without the prior written consent
of the other party, which consent will not be unreasonably withheld or delayed.
7.14 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.14.
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[Signature Page Follows]
25
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
THE BOC GROUP, INC. NUCO2 INC.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxxx X. XxXxxxxxxx
Name: Xxxx Xxxxx Name: Xxxxxxx X. XxXxxxxxxx
Title: President BOC Process Gas Solutions Title: President and CEO
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