STOCKHOLDERS’ AGREEMENT
Exhibit
10.1
STOCKHOLDERS’
AGREEMENT, dated as of January 29, 2008 (this “Agreement”),
among NuCO2
Acquisition Corp., a Delaware corporation (“Parent”),
NuCO2,
Inc., a Florida corporation (the “Company”),
and
the stockholders of the Company listed on the signature pages hereto (each
a
“Stockholder”
and collectively, the “Stockholders”).
WHEREAS,
Parent, NuCO2
Merger Co., a Florida corporation and a wholly-owned subsidiary of Parent
(“Merger
Sub”),
and the Company propose to simultaneously herewith enter into an Agreement
and
Plan of Merger dated as of the date hereof (as the same may be amended or
supplemented, the “Merger
Agreement”; capitalized terms used but not defined herein shall
have the meanings set forth in the Merger Agreement) providing for the merger
of
Merger Sub with and into the Company;
WHEREAS,
as of the date hereof, each Stockholder is the record or beneficial owner
(as
such term is defined in Rule 13d-3 under the Exchange Act) of that number
of
shares of Company Common Stock set forth next to such Stockholder’s name on
Schedule A to
this Agreement (subject to adjustment as contemplated herein, the “Owned
Shares”); and
WHEREAS,
as a condition to the willingness of Parent and Merger Sub to enter into
the
Merger Agreement, and as an inducement and in consideration therefor, Parent
has
requested that the Stockholders enter into this Agreement.
NOW,
THEREFORE, the parties hereto agree as follows:
Section
1. Representations,
Warranties
and Covenants of the Stockholders. Each Stockholder, severally
and not jointly, hereby represents and warrants to Parent as of the date
hereof
as follows:
(a) Authority. The
Stockholder has all requisite power and authority to execute this Agreement
and
to consummate the transactions contemplated hereby. The execution and
delivery by the Stockholder of this Agreement and consummation of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Stockholder.
(b) Execution;
Delivery. The Stockholder has duly executed and delivered this
Agreement, and, assuming the due authorization, execution and delivery hereof
by
the other parties hereto, this Agreement constitutes the valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to
or affecting creditors rights and to general principles of equity. No
consent of, or registration or filing with, any Governmental Authority is
required to be obtained or made by or with respect to the Stockholder in
connection with the execution, delivery and performance of this Agreement
or the
consummation of the transactions contemplated hereby, other than (i) such
reports, schedules or statements under the Exchange Act as may be required
to be
filed by the Stockholder in connection with this Agreement and the transactions
contemplated hereby and (ii) such consents, registrations or filings by the
Stockholder the failure of
which
to be obtained or made would not have an adverse effect on the Stockholder’s
ability to timely perform its obligations hereunder.
(c) The
Owned
Shares. As of the date hereof, the Stockholder is the record
or beneficial owner of the Owned Shares set forth next to such Stockholder’s
name on Schedule A, free
and clear of (i) any Encumbrances (other than the Merger Agreement and this
Agreement) and (ii) any restrictions whatsoever with respect to the
ownership, transfer or voting of the Owned Shares that would, individually
or in
the aggregate, reasonably be expected to impair the ability of the Stockholder
to timely perform its obligations under this Agreement or prevent or delay
the
consummation of the transactions contemplated by the Merger Agreement, subject
to applicable federal or state securities Laws. None of such Owned
Shares are subject to any voting trust or other voting agreement, except
as
contemplated by this Agreement. Except for the Owned Shares and for
stock options disclosed in the Company Disclosure Letter, on the date hereof,
the Stockholder does not own beneficially or of record any common stock or
other
voting securities of the Company and does not, directly or indirectly, own
or
have any option, warrant or other right to acquire any common stock or other
securities of the Company that are or may by their terms become entitled
to vote
or any securities that are convertible or exchangeable into or exercisable
for
any securities of the Company that are or may by their terms become entitled
to
vote under the Company’s articles of incorporation, applicable Law or
otherwise.
(d) No
Conflicts. Except for required filings by the Stockholder
under the Exchange Act (which the Stockholder agrees to make as and to the
extent required by the Exchange Act), to the extent applicable, the execution
and delivery of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof will not, conflict
with, result in a violation or breach of, or constitute a default (or an
event
that, with notice or lapse of time or both, would result in a default) or
give
rise to any right of termination or acceleration under, (i) any loan or
credit agreement, bond, note, mortgage, indenture, lease or any other contract,
agreement or instrument to which the Stockholder is a party or by which the
Stockholder or any of its Owned Shares is bound or (ii) any Law or Order
applicable to the Stockholder, except for any such violation, breach, default
or
right of termination or acceleration that does not impair or materially delay
the Stockholder’s ability to perform its obligations hereunder.
Section
2. Representations
and
Warranties of Parent. Parent hereby represents and warrants to
the Stockholder as follows:
(a) Authority. Parent
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction of its organization. Parent has all requisite corporate
power and authority to execute this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by Parent of this
Agreement and consummation of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of Parent.
(b) Execution;
Delivery. Parent has duly executed and delivered this
Agreement, and, assuming the due authorization, execution and delivery hereof
by
the other parties hereto, this Agreement constitutes the valid and binding
obligation of Parent, enforceable against Parent in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to
or affecting creditors rights and to general principles of equity. No
consent of, or registration or filing with, any Governmental Authority is
required to be obtained or made by or with respect to Parent in connection
with
the execution, delivery and performance of this Agreement or the consummation
of
the transactions contemplated hereby, other than as set forth in the Merger
Agreement.
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(c) No
Conflicts. Subject to compliance by Parent with the regulatory
filings set forth in the Merger Agreement, neither the execution and delivery
of
this Agreement nor the performance by Parent of its obligations hereunder
will
result in a violation or breach of, or constitute a default (or an event
that,
with notice or lapse of time or both, would result in a default) or give
rise to
any right of termination or acceleration under, (i) Parent’s certificate of
incorporation or similar constituent documents, (ii) any loan or credit
agreement, bond, note, mortgage, indenture, lease or any other contract,
agreement or instrument to which Parent is a party or by which Parent is
bound,
or (iii) any Law or Order applicable to Parent; except, in the case of
clauses (ii) and (iii) above, for any such violation, breach, default or
right
of termination or acceleration that does not impair or materially delay the
Parent’s ability to perform its obligations hereunder.
Section
3. Restrictions on
Owned
Shares.
(a) Agreement
to
Vote. Each Stockholder severally (and not jointly) agrees
that, during the term of this Agreement, at any duly called meeting of the
stockholders of the Company, such Stockholder shall vote (or cause to be
voted)
all of its Owned Shares (i) in favor of the Merger, the adoption of the Merger
Agreement and each other action contemplated by the Merger Agreement and
any
actions required in furtherance hereof or thereof and (ii) against the adoption
of any Acquisition Proposal. The foregoing provision shall also apply
to the extent appropriate in the event of stockholder action by written consent
to the extent permitted in the Company’s articles of
incorporation. Concurrently with this Agreement, each Stockholder has
duly executed and delivered an irrevocable proxy in the form attached as
Exhibit A hereto
(the “Irrevocable
Proxy”) appointing Parent and any of its authorized
Representatives during the term of this Agreement as such Stockholder’s proxy
with the power to vote, at any duly called meeting of stockholders of the
Company, or in any other circumstance upon which the vote or other approval
of
holders of Company Common Stock is sought, all of such Stockholder’s Owned
Shares: (i) in favor of the Merger, the adoption of the Merger
Agreement and each other action contemplated by the Merger Agreement and
any
actions required in furtherance hereof or thereof and (ii) against the adoption
of any Acquisition Proposal. It is agreed that Parent and any of its
authorized Representatives shall use the irrevocable proxy granted hereby
only
in accordance with applicable Law. In addition to the other covenants
and agreements of such Stockholder provided for elsewhere in this Agreement,
from the execution of this Agreement until the first to occur of the Effective
Time or the Termination Date, none of the Stockholders shall enter into any
agreement, arrangement or understanding with any person or entity to refrain
from taking any of the actions described in clause (i) or (ii) of the foregoing
sentence, or the effect of which would be inconsistent with or violate the
provisions and agreements contained in this Section 3, in any
case without the prior written consent of Parent.
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(b) No
Transfers. Other than pursuant to this Agreement or as
contemplated by the Merger Agreement, the Stockholder shall not: (i) sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other agreement or instrument with respect to
or
consent to the sale, transfer, tender, pledge, encumbrance, assignment or
other
disposition of (collectively, “Transfer”)
any
of its Owned Shares to any third party, unless such person to which such
Owned
Shares are Transferred executes a counterpart of this Agreement and agrees
to
hold such Owned Shares subject to all of the terms and provisions of this
Agreement; (ii) deposit any of its Owned Shares into a voting trust;
(iii) grant any proxies or powers of attorney or enter into a voting
agreement with respect to any of its Owned Shares; or (iv) enter into any
other agreement or instrument with respect to the voting of any of its Owned
Shares. This Section 3(b) shall
terminate upon a termination of this Agreement or the Merger
Agreement.
(c) The
parties acknowledge that this Agreement does not prohibit any Stockholder,
after
the termination of Section 3(b) hereof,
from selling or Transferring any or all shares of Company Common Stock that
constitute Owned Shares; and neither the Company nor any Stockholder shall
have
any liability, hereunder, under the Merger Agreement or otherwise, to Merger
Sub
or Parent if any such record or beneficial owner Transfers or sells any such
shares of Company Common Stock at any time after such termination.
(d) Waiver
of Appraisal
Rights. Each Stockholder hereby waives, and agrees not to
seek, assert or perfect any appraisal rights under Section 607.1301, et seq., of the FBCA
in
connection with the Merger as it relates to its Owned Shares.
Section
4. Solicitation. Each
Stockholder shall, and shall use commercially reasonable efforts to cause
each
agent and representative (including without limitation any investment banker,
financial advisor, attorney, accountant or other representative retained
by the
Stockholder or any such representative) (each, a “Stockholder
Representative”)
of the
Stockholder to, comply with the provisions of Section
7.03
of the Merger
Agreement. Notwithstanding anything in this Agreement to the
contrary, (i) the provisions of this Agreement apply solely to the
Stockholder when acting in his capacity as a stockholder of the Company
and not when acting or purporting to act as an officer or director of the
Company (it being understood that the Company has separate and independent
obligations under
Section 7.03 of the Merger Agreement); (ii) none of the provisions of
this Agreement shall be construed to prohibit, limit or restrict the Stockholder
from exercising his fiduciary duties as a director or officer of the Company
by
voting or taking any other action whatsoever in his capacity as a director
or
officer of the Company; and (iii) no action taken by the Company in compliance
with the terms of the Merger Agreement in respect of any Acquisition Proposal
shall serve as the basis of a claim that the Stockholder is in breach of
his
obligations hereunder notwithstanding the fact that the Stockholder provided
advice or assistance to the Company in connection therewith.
Section
5. Termination. This
Agreement shall terminate upon the earliest to occur of (i) the Effective
Time,
(ii) the termination of the Merger Agreement, and (iii) upon written notice
by
such Stockholder to Parent from and after any amendment, waiver or modification
to the terms of the Merger Agreement that changes the form of, or decreases
the
amount of, the Merger Consideration, or alters in any material respect the
timing of payment of the Merger Consideration.
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Section
6. General
Provisions.
(a) Amendments. This
Agreement may not be amended except by an instrument in writing signed by
each
of the parties hereto.
(b) Reliance. The
Stockholder understands and acknowledges that Parent is entering into the
Merger
Agreement in reliance upon the Stockholder’s execution, delivery and performance
under this Agreement.
(c) Further
Assurances. From time to time, at Parent’s reasonable request
and without further consideration, the Stockholder shall execute and deliver
such additional documents as may be reasonably necessary to consummate and
make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
(d) Adjustments. In
the event (i) of any stock dividend, stock split, recapitalization,
reclassification, combination or exchange of shares of capital stock or other
securities of the Company on, of or affecting the Owned Shares or the like
or
any other action that would have the effect of changing the number of shares
of
Company Common Stock owned by the Stockholder or (ii) the Stockholder
becomes the record or beneficial owner of any additional shares of Company
Common Stock, then the terms of this Agreement will apply to all of the shares
of Company Common Stock held by the Stockholder immediately following the
effectiveness of the events described in clause (i) or clause
(ii). The Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Parent of the number of any new shares of Company
Common Stock acquired by the Stockholder, if any, after the date
hereof.
(e) Disclosure. The
Stockholder hereby permits Parent and the Company to disclose, in all documents
and schedules filed by Parent or the Company with the SEC, this Agreement
and
the information contained in this Agreement, to the extent this Agreement
and
such information are required by the rules and regulations of the SEC to
be
disclosed therein; provided, however,
that such
disclosure shall be subject to the prior review and comment by the Stockholder
or, prior to the Effective Time, by the Company in accordance with Section 7.06 of the
Merger Agreement. Except as provided in this Agreement or in Section 7.06 of the
Merger Agreement, the Stockholder shall not issue any press release or make
any
other public statement with respect to this Agreement, the Merger Agreement,
the
Merger or any other transactions contemplated by this Agreement, the Merger
Agreement or the Merger without the prior written consent of
Parent.
(f) Notices.
All notices
and other communications hereunder shall be in writing and shall be deemed
given
if delivered personally or sent by overnight courier (providing proof of
delivery) to the Company and Parent in accordance with Section 10.02 of the
Merger Agreement and to Stockholder at its address set forth on Schedule A hereto
(or
at such other address for a party as shall be specified by like
notice.
(g) Interpretation. The
Section headings herein are for convenience of reference only, do not constitute
part of this Agreement and shall not be deemed to limit or otherwise affect
any
of the provisions hereof. Where a reference in this Agreement is made
to a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. Unless
otherwise indicated, whenever the words “include,” “includes” or “including” are
used in this Agreement, they shall be deemed to be followed by the words
“without limitation.” Notwithstanding anything to the contrary
contained herein, the obligations of the Stockholders hereunder shall be
several
and not joint.
5
(h) Severability.
The
provisions of this Agreement shall be deemed severable and the invalidity
or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of
this Agreement, or the application thereof to any person or any circumstance,
is
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of such provision
to
other persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof,
in any
other jurisdiction.
(i) Counterparts.
This
Agreement may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
(j) Entire
Agreement; No
Third-Party Beneficiaries. This Agreement and the Merger
Agreement constitute the entire agreement, and supersede all other prior
agreements, understandings, representations and warranties both written and
oral, among the parties, with respect to the subject matter
hereof. This Agreement is not intended to confer upon any person
other than the parties hereto any rights or remedies hereunder.
(k) Governing
Law. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL
RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE
WITH
THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
(l) Waiver
of Jury
Trial. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING
TO
THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. EACH PARTY (I) 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 (II) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS STOCKHOLDERS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION
6(L).
(m) Merger
Agreement. Each party acknowledges that the other
parties have been induced to enter into this Agreement (and, in the case
of
Parent, the Merger Agreement) based on the terms and conditions of the Merger
Agreement (and, in the case of Parent, this Agreement).
6
(n) Assignment. Except
as otherwise provided herein, no rights or obligations under this Agreement
may
be assigned or delegated by operation of Law or otherwise. Any
purported assignment or delegation in violation of this Agreement is
void.
(o) Consent
to
Jurisdiction. Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of the federal courts of New York County in the Borough of
Manhattan in any action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereunder or for recognition or
enforcement of any judgment relating thereto, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect
of any
such action or proceeding may be heard and determined in such federal
court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it or he may legally and effectively do so,
any
objection that it or he may now or hereafter have to the laying of venue
of any
suit, action or proceeding arising out of or relating to this Agreement or
the
transactions contemplated hereunder in the federal courts of New York County
in
the Borough of Manhattan. Each of the parties hereto irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such
court. The parties hereto further agree that the mailing by certified
or registered mail, return receipt requested, of any process required by
any
such court shall constitute valid and lawful service of process against them,
without the necessity for service by any other means provided by law, with
respect to any matters for which it has submitted to jurisdiction pursuant
to
this Section
6(o). The foregoing consents to jurisdiction and appointments
of agents to receive service of process shall not constitute general consents
to
service of process in the State of New York in the Borough of Manhattan for
any
purpose except as provided above and shall not be deemed to confer rights
on any
person other than the respective parties to this Agreement.
[Signature
Page Follows]
7
IN
WITNESS WHEREOF, each party has duly executed this Stockholders’ Agreement, all
as of the date first written above.
|
NUCO2
INC.
|
|||
|
By:
|
/s/ Xxxxxxx X. XxXxxxxxxx | ||
|
Name:
|
Xxxxxxx X. XxXxxxxxxx | ||
|
Title:
|
Chairman and Chief Executive Officer | ||
|
NUCO2
INC. ACQUISITION
CORP.
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxx | ||
|
Name:
|
Xxxxxxx X. Xxxx | ||
|
Title:
|
V.P., Secretary and General Counsel | ||
|
STOCKHOLDERS:
|
| /s/ Xxxxxxx X. XxXxxxxxxx |
| /s/ Xxxxxx X. Xxxxx |
| /s/ Xxxxxx X. Xxxxxxxx |
| /s/ Xxxxxx Xxxxxx |
| /s/ J. Xxxxxx Xxxxxx |
| /s/ Xxxxxxxxxxx Xxxxx |
| /s/ Xxxxx Gold |
| /s/ Xxxx Xxxxxxxx |
| /s/ Xxxxxx Xxxxxx |
| /s/ Xxxxx Xxxx |
EXHIBIT
A
IRREVOCABLE
PROXY
By
its
execution hereof, and in order to secure its obligations under the Stockholders’
Agreement of even date herewith (the “Agreement”) among NuCO2
Acquisition Corp., a Delaware corporation, NuCO2
Inc., a Florida corporation (the “Company”),
the
stockholders of the Company listed on the signature pages thereto and the
undersigned, the undersigned hereby revokes all previous proxies and appoints
NuCO2
Acquisition Corp. and its duly appointed successors as proxy holder to attend
and with the power to vote, at any duly called meeting of stockholders of
the
Company, or in any other circumstance upon which the vote or other approval
of
holders of Company Common Stock is sought, all of the undersigned’s Owned
Shares, with the same effect as if the undersigned had personally attended
the
meeting or had personally voted the shares or had personally signed the written
consent, in the manner provided in Section 3 of the Agreement. The
undersigned further appoints NuCO2
Acquisition Corp. and its duly appointed successors to act as the undersigned’s
representative and attorney in fact with respect to directing, or causing,
the
vote of all of the Owned Shares: (i) in favor of the Merger, the
adoption of the Merger Agreement and each other action contemplated by the
Merger Agreement and any actions required in furtherance hereof or thereof
and
(ii) against the adoption of any Acquisition Proposal.
The
undersigned authorizes and directs the proxy holder to file this proxy
appointment with the secretary of the Company and authorizes the proxy holder
to
substitute another person as proxy holder and to file the substitution
instrument with the secretary of the Company. Capitalized terms used herein
without definition shall have the meanings assigned to them in the
Agreement.
This
proxy is coupled with an interest and irrevocable until the Effective Time,
the
termination of the Agreement or such other time as is provided in the
Agreement. This proxy terminates upon termination of the Agreement
and is subject to the limitations set forth therein.
Dated: January
29, 2008
|
STOCKHOLDERS:
|
| /s/ Xxxxxxx X. XxXxxxxxxx |
| /s/ Xxxxxx X. Xxxxx |
| /s/ Xxxxxx X. Xxxxxxxx |
| /s/ Xxxxxx Xxxxxx |
| /s/ J. Xxxxxx Xxxxxx |
| /s/ Xxxxxxxxxxx Xxxxx |
| /s/ Xxxxx Gold |
| /s/ Xxxx Xxxxxxxx |
| /s/ Xxxxxx Xxxxxx |
| /s/ Xxxxx Xxxx |
