EXHIBIT 10.1
AMENDMENT TO EMPLOYMENT AGREEMENT
Amendment ("Amendment") dated December 9, 2004 to Employment
Agreement dated as of May 13, 2002 (the "Employment Agreement") by and between
NuCO2 Inc. ("the Corporation") and Xxxxxxx Xxxxx Xxxx ("Xxxx").
WHEREAS, the Corporation and Xxxx are parties to the Employment
Agreement; and
WHEREAS, the Corporation and Xxxx wish to amend the Employment
Agreement to make certain modifications thereto;
NOW, THEREFORE, for Ten Dollars ($10) and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by each of
the parties, the Corporation and Xxxx hereby agree as follows:
1. References in Paragraphs 1.1 and 1.2 of the Employment
Agreement to "Executive Vice President, Operations" shall be
replaced with "Chief Operating Officer".
2. The first sentence of Paragraph 2.1(a) of the Employment
Agreement shall be amended in its entirety to read as follows:
"A base salary ("Base Salary") at the rate of $275,000 per
annum commencing on July 1, 2004, payable in accordance with
the Corporation's regular payment schedule for its employees."
3. The last sentence of Paragraph 2.1(c) of the Employment
Agreement shall be amended in its entirety to read as follows:
"The annual cash bonus will have a target of fifty percent
(50%) of Base Salary (the "Target Cash Bonus") based on the
full achievement of its projected EBITDA and other operating
and financial criteria as projected in the Corporation's
business plan approved by the Board of Directors and the
Executive meeting individual achievement goals recommended by
the Executive and approved by the Chief Executive Officer."
4. The paragraph immediately preceding Paragraph 4.2(a) of the
Employment Agreement shall be amended in its entirety to read
as follows:
"In consideration of the acknowledgement by the Executive, and
in consideration of the compensation and benefits (including
the payments described in Paragraph 5.1(c)) to be paid or
provided to the Executive by the Corporation, the Executive
covenants that he will not, during the Term and 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:"
5. Paragraph 5.1(a) of the Employment Agreement shall be amended
in its entirety to read as follows:
"(a) Continuation of all benefits, including without
limitation medical, dental and life insurance for one and
one-half (1-1/2) years following the date of termination, or
until the date on which the Executive first becomes eligible
for insurance coverage of a similar nature provided by a firm
that employs him following termination of employment by the
Corporation, whichever occurs first."
6. Paragraph 5.1(c) of the Employment Agreement shall be amended
in its entirety to read as follows:
"(c) An amount equal to the greater of (i) one and one-half
(1-1/2) times (y) the Executive's then current annual Base
Salary and (z) the Executive's Target Cash Bonus for the then
current year and (ii) six hundred eighteen thousand seven
hundred fifty dollars ($618,750) to be paid within sixty (60)
days of termination of employment. The parties agree that the
amount of $550,000 payable pursuant to this Paragraph 5.1(c)
shall be treated as paid for in consideration for the
non-compete provisions set forth in Paragraph 4.2 and shall be
subject to the enforcement provisions set forth in Paragraph
4.3 and the balance shall be treated as severance."
7. Paragraph 5.2 of the Employment Agreement shall be amended by
adding the following at the end thereof:
"The Executive hereby covenants and agrees that he shall
notify the Corporation in writing of any claim by the Internal
Revenue Service that any amount paid, distributed or treated
as paid or distributed by the Corporation pursuant to this
Paragraph 5 to or for the Executive's benefit would be subject
to the excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended, or any interest, penalties
or additions to tax are incurred by the Executive with respect
to such excise tax (such excise tax, together with any such
interest, penalties and additions to tax, are hereinafter
collectively referred to as the "Excise Tax"). Such
notification shall be given as soon as practicable but not
later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Corporation of
the nature of such claim and the date on which such claim is
requested to be paid. The Executive shall not pay such claim
prior to the expiration of the 30-day period following the
date on which it gives such notice to the Corporation (or such
shorter period ending on the date that any payment of taxes
with respect to such claim is due). In addition, the Executive
shall:
(i) give the Corporation any information reasonably requested
by the Corporation relating to such claim,
(ii) take such action in connection with contesting such claim
as the Corporation shall reasonably request in writing from
time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Corporation,
(iii) cooperate with the Corporation in good faith so that it
may effectively contest such claim, and
(iv) permit the Corporation to control any proceeding relating
to such claim.
The Corporation hereby covenants and agrees that it shall
contest any claim described in this Section 5.2(c) and shall
bear and pay directly all costs and expenses (but excluding
any Excise Tax, which shall remain the obligation of the
Executive) incurred in connection with such contest. Without
limiting the foregoing, the Corporation shall control all
proceedings taken in connection with such contest and, at its
sole option, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole
option, either direct the Executive to pay the tax claimed and
xxx for a refund or contest the claim in any reasonable
manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court
of initial jurisdiction and in one or more appellate courts,
as the Corporation shall determine; provided, however, the
Corporation shall consult with the Executive and his counsel
in connection with, and provide the Executive and his counsel
with status reports of, such proceedings; and further provided
that (i) the Corporation's control of the contest shall be
limited to issues relating to the Excise Tax and (ii) any
extension of the statute of limitations relating to payment of
taxes for Executive's taxable year with respect to which such
contested amount is claimed to be due is limited solely to
such contested amount. The Executive shall not be entitled to
settle any issue raised by the Internal Revenue Service or any
other taxing authority with respect to the Excise Tax without
the prior written consent of the Corporation.
In the event that a valuation is necessary to support the
position that the tax claimed is not due, in whole or in part,
in connection with any such dispute or contest, such valuation
will be determined through an independent third-party
appraisal of the Corporation's selection, and the expenses
incurred in obtaining such appraisal will be borne by the
Corporation."
8. Paragraph 5.3 of the Employment Agreement shall be amended by
deleting the word "or" immediately following the semi-colon at
the end of subparagraph (d), deleting the period at the end of
subparagraph (e) and adding "; or" at the end thereof, and by
and adding the following new subparagraphs (f) and (g) to read
as follows:
"(f) the failure of the Corporation, its successor or any
Group of Persons acquiring substantially all of the assets of
the Corporation to assume any and all terms of this Agreement;
or
(g) a material breach of this Agreement by the Corporation,
its successor or any Group of Persons acquiring substantially
all of the assets of the Corporation that remains uncured for
a period if thirty (30) days after the Executive provides
notice of such material breach in the manner set forth in
Paragraph 6.5."
9. A new paragraph 5.4 is added to the Employment Agreement to
read as follows:
"5.4 ARBITRATION. In the event that the Executive reasonably
believes that he has Good Reason to terminate his employment
in reliance upon Paragraph 5.3 hereof, the Executive shall
notify the Corporation in writing of such Good Reason to
terminate his employment. If the Corporation disagrees with
the Executive's belief that he has Good Reason to terminate
his employment in reliance upon Paragraph 5.3 hereof, such
unresolved dispute or controversy arising thereunder or in
connection therewith shall be settled exclusively by
arbitration conducted in accordance with the rules of the
American Arbitration Association then in effect in Xxxxxx
County, Florida. The arbitrators shall not have the authority
to add to, detract from, or modify any provision hereof nor to
award punitive damages to any injured party. A decision by a
majority of the arbitration panel shall be final and binding
on whether "Good Reason" exists. Judgment may be entered on
the arbitrators' award in any court having jurisdiction. The
direct expense of any arbitration hearing shall be borne by
the Corporation. Each party shall bear its own counsel's fees
and expenses."
10. Paragraph 6.4 of the Employment Agreement shall be amended in
its entirety to read as follows:
"6.4 JURISDICTIONAL CONSENT. Except as specifically set forth
herein, any dispute or controversy between the parties
relating to or arising out of this Agreement, or any amendment
or modification hereof shall be determined by the Supreme
Court, County of Xxxxxx, State of Florida. The service of any
notice, process, motion or other document in connection with
an action under this Agreement, may be effectuated by either
personal service upon a party or by certified mail directly
addressed to him at his address set forth on Page 1 hereof."
11. Except as herein provided, the Employment Agreement shall
remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the Corporation and Xxxx have executed this
Amendment to be executed this 9th day of December 2004.
NUCO2 INC. XXXXXXX XXXXX XXXX
By: /s/ Xxxxxxx X. XxXxxxxxxx /s/ Xxxxxxx Xxxxx Xxxx
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Name: Xxxxxxx X. XxXxxxxxxx
Title: Chairman and CEO
