Exhibit 10.25
EMPLOYMENT AGREEMENT
AGREEMENT dated September 13, 2007, by and between NUCO2 INC., a
Florida corporation having its principal executive office at 0000 XX Xxxxxx
Xxxxx, Xxxxxx, Xxxxxxx 00000 (hereinafter referred to as the "Corporation"), and
XXXX X. XXXXXXXX, residing at 0000 X. Xxxxx Xxxxx, Xxxxxx Xxxxx, XX 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 The Corporation hereby agrees to employ the Executive and the
Executive agrees to work for the Corporation as its General Counsel and
Secretary. The Executive shall serve as and perform the duties of General
Counsel and Secretary of the Corporation during the Term (defined hereinafter)
of this Agreement.
1.2 The Executive agrees to devote his full business time during
regular business hours to working for the Corporation and performing such duties
as shall from time to time be assigned to him by the Board of Directors of the
Corporation or the Chief Executive Officer of the Corporation consistent with
his position as General Counsel and Secretary. 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 office 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 date of this Agreement and such employment shall continue, except as
otherwise provided herein, through July 30, 2009 (the "Term").
ARTICLE 2 - COMPENSATION
2.1 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) A base salary ("Base Salary") at the rate of $258,000 per annum,
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 or Chief Executive Officer of the
Corporation.
(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, 2008 (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 may be
comprised of options to purchase shares of the Corporation's common stock, $.001
par value per share ("Common Stock") granted in accordance with the provisions
of the Corporation's 2005 Executive Management Stock Option Plan, and cash
payments, the relative amounts of which will be determined in good faith by the
Chief Executive Officer, in his sole discretion, and approved by the
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Corporation's Board of Directors. The Corporation achieving its projected 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 shall be the major considerations in determining the amount of the annual
bonus. The annual cash bonus will have a target of thirty-five percent (35%) 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. Any Target Cash Bonus earned shall be paid no
later than August 31st following the end of the applicable fiscal year.
(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.
ARTICLE 3 - TERMINATION
3.1 Except as otherwise provided herein, the Term of the employment
of the Executive shall terminate:
(a) automatically upon the death of the Executive or voluntary
termination of employment by the Executive other than for Good Reason (as such
term is defined in Paragraph 5.3 below);
(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 that the Executive (i) engages in any criminal conduct constituting a
felony and criminal charges are brought against the Executive by a governmental
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authority, (ii) knowingly and willfully fails or refuses 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, or (iii) knowingly and willfully engages
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 results 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"), and such
activity is not cured by the Executive within the thirty (30) day notice period
provided to the Executive. For purposes of this Agreement, termination pursuant
to this Paragraph 3.1(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.
3.2 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
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installments, without interest, commencing one month following such death. The
Executive's estate shall retain all stock options vested prior to his death, if
any. To the extent that the Corporation receives the proceeds on any life
insurance on the life of the Executive (as provided in Paragraph 3.2(d)) such
proceeds shall be paid, promptly after receipt (but no later than thirty (30)
days after the Corporation has received such proceeds), 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 3.2(a) and shall reduce such obligations on a dollar for dollar
basis. The balance, if any, due the Executive under this Paragraph 3.2(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
stock options vested prior to his disability, if any.
(c) In the event of a termination of the Executive's employment
"for cause" as defined in Paragraph 3.1(c) above or voluntarily by the Executive
other than for Good Reason, 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 bonus pursuant to Paragraph 2.1(b). The Executive shall retain all
stock options vested prior to the termination of his employment.
(d) In the event that the Corporation shall desire to fund the
death benefits payable under Paragraph 3.2(a) above with a policy or policies of
insurance on the life of the Executive or the disability benefits payable under
Paragraph 3.2(b) 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 3.1(d), he will be paid one
(1) year's current Base Salary in equal quarterly installments during the one
(1) year following the termination of employment and shall retain all stock
options which vested prior to the termination of his employment.
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(f) In the event of any termination of the Executive's
employment pursuant to this Article 3 other than "for cause" as defined in
Paragraph 3.1(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 4 - RESTRICTIVE COVENANTS
4.1 CONFIDENTIAL INFORMATION.
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.
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4.2 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 possesses 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 4.2 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
4.2 are reasonable and necessary to protect the Corporation's business.
In consideration of the acknowledgement by the Executive above,
and in consideration of the compensation and benefits (including the payments
described in Paragraphs 3.2(e) and 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:
(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; or
(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.
4.3 ENFORCEMENT. The Executive acknowledges that the services
provided by him pursuant to 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 4.1 or 4.2 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
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Paragraphs 4.1 and 4.2 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 4.1 and 4.2 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 4 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 4 shall survive the termination or
cancellation of the Agreement or of the Executive's termination.
ARTICLE 5 - CHANGE OF CONTROL
5.1 COMPENSATION. If prior to the expiration of the Term of this
Agreement, there is a Change of Control (defined in Paragraph 5.2 below) and
thereafter, within two (2) years of the Change in Control the Executive should
resign his employment for Good Reason (as defined in Paragraph 5.3 below), the
Executive shall be entitled to the following compensation:
(a) Continuation of all benefits, including without limitation
medical, dental and life insurance for one (1) 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.
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(b) Immediate vesting of any granted but unvested options to
purchase Common Stock of the Corporation held by the Executive.
(c) An amount equal to the greater of (i) the Executive's then
current annual Base Salary and the Executive's Target Cash Bonus for the then
current year (such Target Cash Bonus calculated as if the targets had been met
in the event the Target Cash Bonus cannot be calculated as of the date of the
termination of the Executive's employment) and (ii) three hundred forty-eight
thousand three hundred dollars ($348,300) to be paid within sixty (60) days of
termination of employment (except as provided in Paragraph 6.8). The parties
agree that the amount of $258,000 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.
5.2 CHANGE OF CONTROL. For the purposes of this Agreement, a Change
of Control means during any twelve (12) month period (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.
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Notwithstanding anything to the contrary contained in this Agreement, to the
extent that any of the payments and benefits provided for under this Agreement
or any other agreement or arrangement between the Corporation and Executive
(collectively, the "Payments") (i) constitute a "parachute payment" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code") and (ii) but for this Paragraph 5.2 would be subject to the excise tax
imposed by Section 4999 of the Code, then the Payments shall be payable either
(x) in full or (y) as to such lesser amount which would result in no portion of
such Payments being subject to excise tax under Section 4999 of the Code;
whichever of the foregoing amounts, taking into account the applicable federal,
state and local income taxes and the excise tax imposed by Section 4999, results
in Executive's receipt on an after-tax basis, of the greatest amount of benefits
under this Agreement, notwithstanding that all or some portion of such benefits
may be taxable under Section 4999 of the Code. Unless Executive and the
Corporation otherwise agree in writing, any determination required under this
Section shall be made in writing by the Corporation's independent public
accountants (the "Accountants"), whose determination shall be conclusive and
binding upon Executive and the Corporation for all purposes. For purposes of
making the calculations required by this Section, the Accountants may make
reasonable assumptions and approximations concerning applicable taxes and may
rely in reasonable, good faith interpretations concerning the application of
Section 280G and 4999 of the Code. The Corporation and Executive shall furnish
to the Accountants such information and documents as the Accountants may
reasonably request in order to make a determination under this Section. The
Corporation shall bear all costs the Accountants may reasonably incur in
connection with any calculations contemplated by this Paragraph. If any Payments
would be reduced pursuant to the immediately preceding sentence but would not be
so reduced if the shareholder approval requirements of section 280G(b)(5) of the
Code are satisfied, the Corporation shall use its reasonable best efforts to
cause such payments to be submitted for such approval prior to the event giving
rise to such payments. If the limitation set forth in this Paragraph 5.2 is
applied to reduce an amount payable to Executive, and the Internal Revenue
Service successfully asserts that, despite the reduction, Executive has
nonetheless received payments which are in excess of the maximum amount that
could have been paid to Executive without being subjected to any excise tax,
then, unless it would be unlawful for the Corporation to make such a loan or
similar extension of credit to Executive, Executive may repay such excess amount
to the Corporation as though such amount constitutes a loan to Executive made at
the date of payment of such excess amount, bearing interest at 120% of the
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applicable federal rate (as determined under Section 1274(d) of the Code in
respect of such loan).
5.3 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 events (each, an "Event") 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 compensation;
(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 Code;
(e) a material change of the principal work location; or
(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
of any Group of Persons acquiring substantially all of the assets of the
Corporation.
Notwithstanding the foregoing, the Executive shall not have Good Reason
unless he has, within ninety (90) days of the Event, notified the Corporation of
the Event in the manner set forth in Paragraph 6.5 and the Event remains uncured
for a period of thirty (30) days after the Executive provides notice of the
Event.
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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, and 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. The arbitration shall take place in Xxxxxx County, Florida before a
panel of three arbitrators who shall be mutually agreed upon by the Corporation
and the Executive. The exclusive question for the arbitrators shall be whether
or not Good Reason for the termination exists. 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.
ARTICLE 6 - MISCELLANEOUS
6.1 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.
6.2 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.
6.3 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.
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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 Circuit 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.
6.5 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.
6.6 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.
6.7 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.
6.8 SECTION 409A. It is the intention of the parties hereto that
this Agreement comply strictly with the provisions of Section 409A of the Code,
and Treasury Regulations and other Internal Revenue Service guidance (the
"Section 409A Rules"). Accordingly, this Agreement, including, but not limited
to, any provision relating to severance payments, Change in Control payments or
the terms of any grants of stock options hereunder, including, but not limited
to, the timing of payments, may be amended from time to time with the consent of
the Executive as may be necessary or appropriate to comply with, and to avoid
adverse tax consequences under the Section 409A Rules. The Executive agrees that
no payment will be made to him until such time as the payment may be made
without the imposition of the 20% excise tax imposed by Section 409A of the Code
by virtue of Section 409A(a)(2)(B)(i) of the Code (which, if applicable,
generally provides that no payment, other than certain severance payments, may
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be made to a key employee of a public company prior to the date that is six
months following separation from service within the meaning of Section 409A of
the Code).
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
as of the day and year first above written.
NUCO2 INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. XxXxxxxxxx
Title: Chairman and CEO
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
XXXX X. XXXXXXXX
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279658.3
