Exhibit 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), is made and entered
into this 1st day of October, 2001, by and between THE BOC GROUP, INC., a
Delaware corporation ("Buyer"), and XXXXXX X. XXXXXXX, an individual with an
address at 0000 XX Xxxx Xxx, Xxxxxx, Xxxxxxx 00000 (the "Seller").
R E C I T A L:
Seller desires sell to Buyer and Buyer desires to purchase from Seller,
on the terms and subject to the conditions set forth in this Agreement, Seller's
Two Hundred, Ninety Eight Thousand, Two Hundred and Eight (298,208) shares (the
"Common Shares") of common stock, par value $0.001 per share, in NUCO2 Inc., a
Florida corporation (the "Company"), in exchange for the Common Share Purchase
Price (as defined herein) and such other agreements, obligations, and
consideration as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the parties hereto 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, Buyer agrees to purchase the Common Shares for the
Common Share Purchase Price from Seller, and Seller agrees to sell the Common
Shares to Buyer at the Closing.
1.2 Purchase Price for Common Shares. The purchase price of the Common
Shares, representing a per share price of $13.75, shall be Four Million, One
Hundred Thousand, Three Hundred and Sixty Dollars ($4,100,360) (the "Common
Share Purchase Price").
ARTICLE 2 THE CLOSING
2.1 Closing. The closing of the transaction (the "Closing") shall occur
at the offices of Buyer on the date hereof or at such other date and/or place as
may be mutually agreed upon by
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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 Seller to Buyer. At the Closing, Seller shall
deliver or cause to be delivered to Buyer a certificate evidencing the Common
Shares being purchased by the Buyer, registered in the name of Buyer, duly
endorsed for transfer or accompanied by properly executed stock powers, with all
signatures guaranteed by a commercial bank or a member of the New York Stock
Exchange acceptable to Buyer, and accompanied by all requisite transfer stamps.
2.3 Delivery by Buyer to Seller. At the Closing, Buyer shall deliver or
cause to be delivered to Seller the Common Share Purchase Price.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as of the Closing Date as
follows:
3.1 Authority; Enforceability. Seller has all requisite power and
authority, and has taken all action necessary to execute and deliver this
Agreement, to consummate the transactions contemplated hereby, and to perform
its obligations hereunder. This Agreement has been duly executed and delivered
by Seller and constitutes legal, valid, and binding obligations of Seller
enforceable against Seller in accordance with their respective terms, except as
the enforcement thereof may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or transfer, or other laws
affecting the enforcement of creditors' rights generally from time to time in
effect or by general principles of equity.
3.2 No Conflicts. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and compliance with the
terms hereof do not violate or conflict with in any respect, or result in a
breach under, any contract, license, order or law applicable to Seller.
3.3 No Consents. No consent of approval of, or filing with, any court
or other person is required to be obtained or made by or with respect to Seller
in connection with the execution,
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delivery, and performance of this Agreement or the consummation by Seller of the
transactions contemplated hereby.
3.4 Ownership of Shares; Title. All of the Common Shares are lawfully
owned of record and beneficially by Seller, free and clear of any lien or other
limitation or restriction (including any restriction on the right to vote, sell,
or otherwise dispose of the Common Shares, subject to applicable securities
laws). Seller has the full legal right, power, and authority to vote such Common
Shares. Such Shares are not subject to any voting trust agreement or other
contract, agreement, arrangement, commitment, option, proxy, right of first
refusal, or understanding, including any contract restricting or otherwise
relating to the voting, dividend rights or disposition of the Common Shares.
3.5 Litigation. There is no action, suit, investigation, arbitration or
administrative or other proceeding pending, or threatened against or affecting
Seller before any court or arbitrator or any governmental authority which, if
determined or resolved adversely to Seller, could reasonably be expected to,
individually or when considered together with all such other matters, adversely
affect the right or ability of Seller to consummate the transactions
contemplated by this Agreement; and Seller knows of no valid basis for any such
action, suit, investigation or proceeding.
3.6 Disclosure. (a) No representation or warranty by Seller contained
herein or in any statement or certificate furnished or to be furnished to Buyer
pursuant hereto or connection with this Agreement or the transactions
contemplated hereby contains or will contain any untrue statement of material
fact or omits or will omit any statement of material fact to make the statements
contained herein or therein not misleading or accurate, true, correct, and
complete.
(b) There is no fact known to Seller that has not been disclosed to
Buyer orally or in writing that materially affects or, insofar as Seller can
reasonably foresee, will materially affect, the Company, its financial
condition, or results of operations.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as of the Closing Date as
follows:
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4.1 Authority; Enforceability. Buyer is a corporation duly
incorporated, validly existing, and in good standing under the laws of the State
of Delaware. Buyer has all requisite corporate power and authority, and has
taken all corporate action necessary to execute and deliver this Agreement, to
consummate the transactions contemplated hereby, and to perform its obligations
hereunder. This Agreement has been duly executed and delivered by Buyer and
constitutes legal, valid, and binding obligations of Buyer enforceable against
Buyer in accordance with their respective terms, except as the enforcement
thereof may be limited by applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or transfer, or other laws affecting the
enforcement of creditors' rights generally from time to time in effect or by
general principles of equity.
4.2 No Conflicts. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and compliance with the
terms hereof do not violate or conflict with in any respect, or result in a
breach under, any contract, license, order or law applicable to Buyer.
4.3 No Consents. No consent of approval of, or filing with, any court
or other person is required to be obtained or made by or with respect to Buyer
in connection with the execution, delivery and performance of this Agreement or
the consummation by Buyer of the transactions contemplated hereby.
4.4 Litigation. There is no action, suit, investigation, arbitration or
administrative or other proceeding pending, or, to Buyer's knowledge, threatened
against or affecting Buyer before any court or arbitrator or any governmental
authority which, if determined or resolved adversely to Buyer, could reasonably
be expected to, individually or when considered together with all such other
matters, adversely affect the right or ability of Buyer to consummate the
transactions contemplated by this Agreement; and Buyer knows of no valid basis
for any such action, suit, investigation or proceeding.
4.5 Accredited Investor (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
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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 of 1933, as amended (the "Securities Act"); and (c) Buyer is
experienced in evaluating and investing in securities, and understands that the
Common Shares will be restricted securities, and that a legend to that effect
shall be placed on the Common Shares.
4.6 Securities Act Compliance. Buyer understands that the Seller 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
any applicable state securities laws or the availability of an exemption
therefrom.
ARTICLE 5 POST-CLOSING COVENANTS
5.1 General. In case at any time after the Closing any further action
is necessary to carry out the transactions contemplated by this Agreement, each
of the parties hereto will take such further action (including the execution and
delivery of such further instruments and documents) as the other party
reasonably may request, all at the sole cost and expense of the requesting
party.
5.2 Securities Filings. Each party shall promptly file all federal and
state securities filings that may be necessary pursuant to this Agreement.
ARTICLE 6 GENERAL PROVISIONS
6.1 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, or relate to any breach of any of such party's representations,
warranties, covenants, or agreements under this Agreement.
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6.2 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.
6.3 Applicable Law. This Agreement will be governed by, and construed
in accordance with, the laws of the State of New Jersey applicable to contracts
executed in and to be performed entirely within New Jersey.
6.4 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.
6.5 Parties in Interest. This Agreement shall bind and inure to the
benefit of the parties named herein and their respective heirs, successors, and
assigns.
6.6 Expenses. Each party hereto will pay its own expenses in connection
with the transactions contemplated hereby.
6.7 Entire Transaction. This Agreement constitutes the entire
understanding between the parties with respect to the transaction contemplated
hereby and supersedes all other agreements and understandings between the
parties, both written and oral.
6.8 Headings. The Article 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.
6.9 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
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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 court to whom disputes relating to this
Agreement are submitted to reform the otherwise illegal, invalid or
unenforceable provision in accordance with this Paragraph 6.9.
6.10 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.
6.11 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 Seller any legal or equitable right, remedy or claim under or with
respect to this Agreement.
6.12 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 Seller, to:
Xxxxxx X. Xxxxxxx
0000 XX Xxxx Xxx
Xxxxxx, Xxxxxxx 00000
Facsimile Number: 000-000-0000
If to Buyer, to:
The BOC Group, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Facsimile Number: 000-000-0000
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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.
6.14 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 6.14.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
THE BOC GROUP, INC.
By:
-----------------------------
Name:
Title:
XXXXXX X. XXXXXXX
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