Exhibit 10.21
EMPLOYMENT AGREEMENT
AGREEMENT entered into effective as of the 2nd day of June 2000, 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 000 Xxx Xxxxxxx Xxxx, Xxx
Xxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred to as the "Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Corporation desires to employ the Executive and the
Executive desires to be employed by the Corporation upon the terms and subject
to the conditions hereinafter set forth, NOW, THEREFORE, in consideration of the
mutual covenants herein contained and for other good and valuable consideration,
it is agreed as follows:
ARTICLE 1 - EMPLOYMENT TERMS AND DUTIES
1.1 (a) The Corporation hereby agrees to employ the Executive and
the Executive agrees to work for the Corporation as its President; 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 President of the
Corporation during the Term (defined hereinafter) of this Agreement. The
Executive shall upon commencement of employment be elected to the Corporation's
Board of Directors. The Board of Directors shall, within a reasonable period of
time in its judgment, and the best interests of the Executive and the
Corporation, appoint the Executive Chief Executive Officer of the Corporation.
(b) In the event the Executive is not appointed Chief Executive
Officer of the Corporation within twelve (12) months of the commencement of his
employment, he may resign his employment and receive the severance compensation
set forth in Paragraphs 6.1(a), (b) and (c) below.
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 of Directors of the Corporation or Chief Executive Officer of
the Corporation consistent with his position as President. 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 of Directors of the Corporation and the Chief Executive
Officer with respect to his duties, responsibilities and the exercise of his
powers.
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 the Executive's employment hereunder shall commence
upon the execution by the Executive of this Agreement with the understanding
that during the first thirty (30) days of his employment, he will be paid in
lieu of his Base Salary $10,000 and that he will perform his duties outside of
the principal office of the Corporation and shall no later than July 17, 2000
commence duties at the Corporation's prime office and such employment shall
continue, except as otherwise provided herein, through June 30, 2005 (the
"Term").
ARTICLE 2 - COMPENSATION
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) (i) A base salary ("Base Salary") at the rate of $300,000
per annum or such greater rate as may from time to time be authorized by the
Board of Directors of the Corporation, payable in accordance with the
Corporation's regular payment schedule for its employees. The Base Salary will
be reviewed annually and may be increased from time to time by the Board of
Directors of the Corporation in its sole discretion.
(ii) The Executive will be paid a signing bonus of $150,000
within thirty (30) days of the commencement of his employment pursuant to this
Agreement.
(b) During the Term of this Agreement and subject to the
provisions hereof, the Executive shall be entitled, commencing with respect to
fiscal year ending June 30, 2001 (and on each June 30 thereafter 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 will
be comprised of options to purchase the Company's common shares and cash
payments, the relative amounts of which will be determined by the Company's
Board of Directors 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 its Board of Directors for the applicable fiscal
year, the Executive shall receive a bonus consisting of a cash payment of no
less than 60% of Base Salary and options to purchase no less than 50,000 shares
of Common Stock of the Corporation;
(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 its Board of Directors for such
fiscal year, the Executive shall receive a bonus consisting of a cash payment in
excess of 60% of Base Salary and options to purchase in excess of 50,000 shares
of Common Stock of the Corporation, the exact amount of cash and options to be
based on the best judgment of the Board of Directors.
(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.
(f) The Corporation shall pay the reasonable moving and closing
costs for Executive's purchase of a new home in the State of Florida as well as
to pay the reasonable costs of temporarily housing the Executive for a period
not to exceed four (4) months, provided that such costs shall not exceed
$40,000. Any sums paid pursuant to this Paragraph 2(f) by the Corporation shall
be grossed up to eliminate the cost to the Executive of income taxes, if any,
paid on such sums received.
ARTICLE 3 - STOCK OPTIONS
In consideration of the Executive's agreement to enter into this
Agreement, effective as of the date of this Agreement, the Corporation shall
grant to the Executive stock options (the "Options") 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) to
purchase up to Three Hundred Thousand (300,000) shares of the Corporation's
common stock, $.001 par value, over a four (4) year vesting period of one-fifth
of such shares vesting on July 1, 2000 and one-fifth on each succeeding July 1,
as outlined on Exhibit A under the terms of an Option Agreement attached hereto
and made a part hereof, but such shares shall vest only so long as the Executive
continues to be employed by the Corporation. The exercise price for such options
shall be no greater than the closing price of the Corporation's Common Stock on
the Nasdaq National Market on the date the Executive
commences his employment by the Corporation. In the event that there are
inconsistencies between the terms of this Agreement and the Option Agreement
attached hereto as Exhibit A or the 1995 Stock Option Plan, the terms of this
Agreement shall control.
ARTICLE 4 - TERMINATION
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 wilfully 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 of Directors of the Corporation, and (iii)
knowingly and wilfully 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 of Directors of the
Corporation ("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 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 the compensation
payable to the Executive during the twelve (12) month period immediately
preceding the Executive's death, payable in twelve (12) equal monthly
installments, without interest, commencing one month following such death. The
Executive's estate shall retain all Options vested prior to his death and shall
receive all Options due to vest during the year following the Executive's death.
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(e)) 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.
(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 his then current annual Base Salary, 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 and shall receive all Options due to vest during the year
following the Executive's disability.
(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 Incentive 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.
(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 two
(2) years current Base Salary in 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 Options due to vest during the one (1) year period
following termination.
(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 Section 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 during the applicable period of salary continuation in
all medical insurance and related benefits provided by the Corporation on the
same basis as prior to the date of his termination.
ARTICLE 5 - RESTRICTIVE COVENANTS
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.
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 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.
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.
ARTICLE 6 - SEVERANCE - CHANGE OF CONTROL
6.1 Severance 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 Severance compensation:
(a) Continuation of all benefits, including without limitation
medical, dental and life insurance for one year 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 the granted but unvested options to
purchase common stock of the Company held by the Executive attributable to his
year(s) of service (including but not limited to the Options received pursuant
to Article 3 hereof); except, if a Change of Control shall occur, all options to
purchase common stock of the Company which would vest during the two (2) years
following the Change of Control shall immediately vest.
(c) An amount equal to two (2) times current annual cash
compensation to be paid within sixty (60) days of termination of employment.
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 Corporation's Board of
Directors in any given year as compared to the directors who constituted the
Corporation's Board at the beginning of such year, and such replacement shall
not have been approved by the Corporation's Board of Directors, 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.
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) 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;
(b) 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;
(c) a reduction by the Corporation in the Executive's Base
Salary, or material change in Executive's bonus structure;
(d) 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 Internal Revenue Code; or
(e) a material change of the principal work location.
ARTICLE 7 - MISCELLANEOUS
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.
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. 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 of
Directors.
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.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
as of the day and year first above written.
NUCO2 INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx, Chairman of
the Board and Chief Executive Officer
/s/ Xxxxxxx XxXxxxxxxx
-----------------------------
XXXXXXX XxXXXXXXXX
EXHIBIT A
NUCO2 INC.
0000 X.X. Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
------------------
To: Xxxxxxx XxXxxxxxxx:
We are pleased to inform you that effective June 2, 2000, the Stock
Option Committee of the Board of Directors of NuCo2 Inc. (the "Company") granted
you options (the "Option") pursuant to the Company's 1995 Stock Option Plan (the
"Plan"), to purchase 300,000 shares (the "Shares") of Common Stock, par value
$.001 per share, of the Company, at a price of $6.75 per Share.
The Option may be exercised prior to June 30, 2010 (on which date
the Option will, to the extent not previously exercised, expire) as follows: (i)
as to one-fifth the number of Shares on or after July 1, 2000, (ii) as to
one-fifth the number of Shares on or after July 1, 2001 (iii) as to the
one-fifth of the number of Shares on or after July 1, 2002, (iv) as to one-fifth
of all number of Shares on or after July 1, 2003 and (v) as to the remaining
one-fifth of the Share, on or after July 1, 2004. In the event your employment
should terminate prior to the expiration of the term of employment set forth in
the Agreement between you and the Company dated as of June 2, 2000, your right
to exercise Options may be accelerated as provided in said Agreement. You must
purchase a minimum of 100 Shares each time you choose to purchase Shares, except
to purchase the remaining Shares available to you.
The Option is issued in accordance with and is subject to and
conditioned upon all of the terms and conditions of the Plan (a copy of which in
its present form is attached hereto), as from time to time amended. Reference is
made to the terms and conditions of the Plan, all of which are incorporated by
reference in this option agreement as if fully set forth herein.
Unless at the time of the exercise of the Option a registration
statement under the Securities Act of 1933, as amended (the "Act"), is in effect
as to such Shares, any Shares purchased by you upon the exercise of the Option
shall be acquired for investment and not for sale or distribution, and if the
Company so requests, upon any exercise of the Option, in whole or in part, you
will execute and deliver to the Company a certificate to such effect. The
Company shall not be obligated to issue any Shares pursuant to the Option if, in
the opinion of counsel to the Company, the Shares to be so issued are required
to be registered or otherwise qualified under the Act or under any other
applicable statute, regulation or ordinance affecting the sale of securities,
unless and until such Shares have been so registered or otherwise qualified.
You understand and acknowledge that, under existing law, unless at
the time of the exercise of the Option a registration statement under the Act is
in effect as to such Shares (i) any Shares purchased by you upon exercise of the
Option may be required to be held indefinitely unless such Shares are
subsequently registered under the Act or an exemption from such registration is
available; (ii) any sales of such Shares made in reliance upon Rule 144
promulgated under the Act may be made only in accordance with the terms and
conditions of that Rule (which, under certain circumstances, restrict the number
of shares which may be sold and the manner in which shares may be sold); (iii)
in the case of securities to which Rule 144 is not applicable, compliance with
Regulation A
promulgated under the Act or some other disclosure exemption will be required;
(iv) certificates for Shares to be issued to you hereunder shall bear a legend
to the effect that the Shares have not been registered under the Act and that
the Shares may not be sold, hypothecated or otherwise transferred in the absence
of an effective registration statement under the Act relating thereto or an
opinion of counsel satisfactory to the Company that such registration is not
required; (v) the Company will place an appropriate "stop transfer" order with
its transfer agent with respect to such Shares; and (vi) the Company has
undertaken no obligation to register the Shares or to include the Shares in any
registration statement which may be filed by it subsequent to the issuance of
the shares to you. In addition, you understand and acknowledge that the Company
has no obligation to you to furnish information necessary to enable you to make
sales under Rule 144.
The Option (or installment thereof) is to be exercised by delivering
to the Company a written notice of exercise in the form attached hereto as
Exhibit A, specifying the number of Shares to be purchased, together with
payment of the purchase price of the Shares to be purchased. The purchase price
is to be paid in cash or, at the discretion of the Stock Option Committee, by
delivering shares of the Company's stock already owned by you and having a fair
market value on the date of exercise equal to the exercise price of the Option,
or a combination of such shares and cash, or otherwise in accordance with the
Plan.
All provisions of the Employment Agreement of even date herewith are
incorporated herein and in the 1995 Stock Option Plan by reference, and in the
event of any inconsistencies between this Option Agreement, the 1995 Stock
Option Plan and the subject Employment Agreement, the terms of the Employment
Agreement shall control.
Would you kindly evidence your acceptance of the Option and your
agreement to comply with the provisions hereof and of the Plan by executing this
letter under the words "Agreed To and Accepted."
Very truly yours,
NuCo2 Inc.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Xxxxxx X. Xxxxxxx, Chairman of the Board
AGREED TO AND ACCEPTED:
/s/ Xxxxxxx XxXxxxxxxx
----------------------
Xxxxxxx XxXxxxxxxx
Exhibit A
NuCo2 Inc.
0000 X.X. Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Notice is hereby given of my election to purchase _____ shares of
Common Stock, $.001 par value (the "Shares"), of NuCo2 Inc., at a price of
$_________ per Share, pursuant to the provisions of the option granted to me on
June 2, 2000, under the Company's 1995 Stock Option Plan. Enclosed in payment
for the Shares is:
----
/___/ my check in the amount of $________.
----
*/___/ ___________ Shares having a total value of
$________, such value being based on the
closing price(s) of the Shares on the date
hereof.
The following information is supplied for use in issuing and
registering the Shares purchased hereby:
Number of Certificates
and Denominations ___________________
Name ___________________
Address ___________________
-------------------
Social Security Number ___________________
Dated: _______________
Very truly yours,
--------------------------
Xxxxxxx XxXxxxxxxx
