Exhibit 10.1
AMENDMENT NO. 1 TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Amendment No. 1 ("Amendment") dated September 19, 2006 to Amended and
Restated Employment Agreement effective as of August 10, 2004 (the "Employment
Agreement") by and between NuCO2 Inc. (the "Corporation") and Xxxxxxx X.
XxXxxxxxxx (the "Executive").
WHEREAS, the Corporation and the Executive are parties to the
Employment Agreement; and
WHEREAS, the Corporation and the Executive 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 the Executive hereby agree as follows:
1. Paragraph 1.5 of the Employment Agreement is hereby amended in
its entirety to read as follows:
"1.5 The term of the Executive's employment hereunder shall
continue, except as otherwise provided herein, through June 30,
2009."
2. The first sentence of Paragraph 2(a) of the Employment Agreement
is hereby amended in its entirety to read as follows:
"A base salary ("Base Salary") at the rate of $432,600 per annum
or such greater rate as may from time to time be authorized by
the Board, payable in accordance with the Corporation's regular
payment schedule for its employees."
3. Paragraph 2(b) of the Employment Agreement immediately preceding
subparagraph (i) thereof is hereby amended in its entirety to
read as follows:
"During the Term of this Agreement and subject to the provisions
hereof, the Executive shall be entitled, at the end of each
fiscal year of the Corporation (each June 30 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 the Corporation's common stock, $.001 par value per
share (the "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 by the Board as follows:"
4. The first paragraph of Paragraph 4.1(c) of the Employment
Agreement is hereby amended in its entirety to read as follows:
"(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 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, or (iii)
knowingly and willfully 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 ("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 4.1(c)
shall be deemed a termination "for cause"."
5. Paragraph 6.1(c) of the Employment Agreement is hereby amended in
its entirety to read as follows:
"(c) An amount equal to the greater of (i) two (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)
one million four hundred seventy thousand eight hundred forty
dollars ($1,470,840), to be paid within sixty (60) days of
termination of employment."
6. Immediately following Paragraph 7.7 of the Agreement, a new
Paragraph 7.8 is hereby added as follows:
"7.8 SECTION 409A. It is the intention of the parties hereto that
this Agreement comply strictly with the provisions of Section
409A of the Internal Revenue Code of 1986, as amended, 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."
7. Except as herein provided, the Employment Agreement shall remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, the Corporation and the Executive have executed
this Amendment as of the day and year first above written.
NUCO2 INC.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Director
/s/ Xxxxxxx X. Xxxxxxxxxx
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XXXXXXX X. XXXXXXXXXX
