SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
NAME OF ISSUER: NUCO2 Inc.
TITLE OF CLASS OF SECURITIES: Common Stock, $.001 par value per share
CUSIP NUMBER: 629428103
NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE
NOTICES AND COMMUNICATIONS:
Jim Blake, Esq.
General Counsel
The BOC Group, Inc.
575 Mountain Avenue
Murray Hill, New Jersey 07974
Facsimile Number: (908) 771-4803
DATE OF EVENT WHICH REQUIRES FILING: May 1, 1999
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss.240.13d-7(b) for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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1. NAME OF REPORTING PERSON: The BOC Group, Inc.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) (b) |X|
3. SEC USE ONLY:
4. SOURCE OF FUNDS: Not applicable
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e):
Yes No |X|
6. CITIZENSHIP OR PLACE OF ORGANIZATION: The BOC Group, Inc. - Delaware
7. SOLE VOTING POWER: 1,000,000
8. SHARED VOTING POWER: 0
9. SOLD DISPOSITIVE POWER: 1,000,000
10. SHARED DISPOSITIVE POWER: 0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 1,000,000
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES:
Yes No: |X|
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 12.2%
14. TYPE OF REPORTING PERSON: CO
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Item 1 Security and Issuer:
Common Stock, $.001 par value per share of NUCO2
INC.
Item 2 Identity and Background
(a) The BOC Group, Inc. The BOC Group, Inc. is an indirect wholly
owned subsidiary of The BOC Group plc
(b) The BOC Group, Inc.
575 Mountain Avenue
Murray Hill, New Jersey 07974
The BOC Group plc
Chertsey Road
Windlesham, Surrey
GU20 6HJ United Kingdom
(c) The reporting persons are in the industrial gas business.
(d) The reporting persons have not during the past five years been
convicted in a criminal proceeding in the United States
(excluding traffic violations or similar misdemeanors).
(e) The reporting persons have not during the past five years been
a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such
proceeding were or are subject to, a judgment, decree or final
order enjoining future violations of, or prohibiting or
mandating activities subject to, United States federal or state
securities laws or finding any violation with respect to such
laws.
(f) The BOC Group, Inc.: Delaware
The BOC Group plc: England
Item 3 Source and Amount of Funds or Other Consideration
Not applicable
Item 4 Purpose of Transaction
This Statement is being filed because warrants to purchase
common stock of the issuer held by The BOC Group, Inc. become
exercisable with 60 days of the date hereof. Such options were
granted to The BOC Group, Inc. in May of 1997 in connection
with the sale of certain assets by The BOC Group, Inc. to the
issuer.
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The reporting persons have no plans on proposals which would
relate to or result in:
(a) The acquisition by any person of additional securities of the
issuer, or the disposition of securities of the issuer;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the issuer or any of
its subsidiaries;
(c) A sale or transfer of a material amount of assets of the issuer
or any of its subsidiaries;
(d) Any change in the present board of directors or management of
the issuer, including any plans or proposals to change the
number or term of directors or to fill any existing vacancies
on the board;
(e) Any material change in the present capitalization or dividend
policy of the issuer;
(f) Any other material change in the issuer's business or corporate
structure including but not limited to, if the issuer is a
registered closed-end investment company, any plans or
proposals to make any changes in its investment policy for
which a vote is required by Section 13 of the Investment
Company Act of 1940;
(g) Changes in the issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the
acquisition of control of the issuer by any person;
(h) Causing a class of securities of the issuer to be delisted from
a national securities exchange or to cease to be authorized to
be quoted in an inter-dealer quotation system of a registered
national securities association;
(i) A class of equity securities of the issuer becoming eligible
for termination of registration pursuant to Section 12(g)(4) of
the Act.
Item 5 Interest in Securities of Issuer
(a) The BOC Group, Inc. owns warrants to purchase 1,000,000 shares
of common stock of the issuer. Such warrants become exercisable
on May 1, 1999. By virtue of being the ultimate parent of The
BOC Group, Inc., The BOC Group plc beneficially owns warrants
to purchase 1,000,000 shares of common stock of the issuer. On
a fully diluted basis, such shares represent 12.2% of the
outstanding shares of the issuer.
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(b) The BOC Group, Inc. has the sole power to vote and dispose of
all shares of common stock underlying warrants of issuer.
(c) None.
Item 6 Contracts, Arrangements, Understandings or Relationships with respect
to Securities of the Issuer
The warrant gives The BOC Group, Inc. certain piggyback registration
rights.
Item 7 Material to be Filed as Exhibits
Exhibit 1: Special Warrant to Purchase Common Stock of NUCO2 Inc.
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statements is true, complete and correct.
THE BOC GROUP, INC.
Date: February 26, 1999 By: /s/ James P. Blake
--------------------------
James P. Blake
Vice President
<PAGE>
Exhibit 1
NO. W-9
WARRANT TO
PURCHASE
1,000,000 SHARES
OF COMMON STOCK
SPECIAL WARRANT TO PURCHASE
COMMON STOCK
OF
NUCO2 INC.
NuCo2 Inc., a Florida corporation (the "Company") certifies that, for
value received, The BOC Group, Inc., a Delaware corporation ("BOC"), or its
registered assigns, is entitled to purchase from the Company, subject to the
terms and conditions set forth below, at any time on or after 9:00 A.M., Stuart,
Florida time, on May 1, 1999, and before the Expiration Date (as defined below),
the number of fully paid and nonassessable shares of Common Stock, $.001 par
value, of the Company ("Common Stock") stated above at the Purchase Price (as
defined below). The Purchase Price and the number of shares purchasable
hereunder are subject to adjustment as provided below.
ARTICLE I
DEFINITIONS
SECTION I.1. (1) The term "Business Day" as used in this Warrant means
a day other than a Saturday, Sunday or other day on which national banking
associations whose principal offices are located in the State of Florida are
authorized by law to remain closed.
(2) The term "Expiration Date" as used in this Warrant means
5:00 P.M, Stuart, Florida time, on April 30, 2007, or if that day is not a
Business Day, as defined above, at or before 5:00 P.M., Stuart, Florida time, on
the next following Business Day.
(3) The term "Purchase Price" as used in this Warrant means
$17.00 per share prior to May 1, 2002 and $20.00 thereafter, subject to
adjustment pursuant to Article III hereof.
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(4) The term "Restricted Shares" as used in this Warrant means
Warrant Shares the certificates for which bear or are required to bear the
legend required by Section 6.6 of this Warrant.
(5) The term "Warrant Holder" as used in this Warrant means
BOC or any other person or entity in whose name this Warrant is duly registered
on the books maintained by the Company for that purpose.
(6) The term "Warrant Shares" as used in this Warrant means
the shares of Common Stock or other securities issuable upon exercise of the
Warrants.
ARTICLE II
DURATION AND EXERCISE OF WARRANT
SECTION II.1. This Warrant may be exercised at any time after 9:00
A.M., Stuart, Florida time, on May 1, 1999, and before the Expiration Date,
provided, however, that notwithstanding the foregoing, prior to May 1, 1999 in
the event (i) that certain Supply Agreement dated May 1, 1997 by and between the
Company and BOC (the "Supply Agreement") shall have been terminated by BOC due
to the material breach by the Company of the terms and provisions thereof, or
(ii) a Change of Control (as defined below) shall have occurred, this Warrant
shall immediately become exercisable. Notwithstanding the foregoing, this
Warrant shall immediately terminate and be of no further force or effect in the
event of a material breach by BOC of the terms and provisions of the Supply
Agreement and the Company shall have terminated the Supply Agreement.
"Change in Control" shall mean:
(a) on or after the date of execution of this
Warrant, any person (which, for all purposes hereof, shall include, without
limitation, an individual, sole proprietorship, partnership, unincorporated
association, unincorporated syndicate, unincorporated organization, trust, body
corporate and a trustee, executor, administrator or other legal representative)
(a "Person") or any group of two or more Persons acting in concert becoming the
beneficial owner, directly or indirectly, of (i) 20% or more of the then
outstanding shares of Common Stock or (ii) 20% or more of the then assets of the
Company; or
(b) at any time subsequent to the date of execution
of this Warrant there shall be elected or appointed to the Board of Directors of
the Company any director or directors whose appointment or election by the Board
of Directors or nomination for election or election by the Company's
shareholders was not approved by a vote of at least a majority of the directors
then still in office who were either directors on the date of execution of this
Agreement or whose election or appointment or nomination for election was
previously so approved; or
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(c) a reorganization, merger, consolidation,
combination, corporate restructuring or similar transaction (an "Event"), in
each case, in respect of which the beneficial owners of the outstanding Company
voting securities immediately prior to such Event do not, following such Event,
beneficially own, directly or indirectly, more than 51% of the combined voting
power of the then outstanding voting securities entitled to vote generally in
the election of directors of (i) the Company or any resulting corporation and
(ii) any parent of the Company or any corporation resulting from the Event; or
(d) an Event involving the Company as a result of
which 50% or more of the members of the board of directors of the Company are
not persons who were members of the Board of Directors immediately prior to the
earlier of (x) the Event, (y) execution of an agreement the consummation of
which would result in the Event, or (z) announcement by the Company of an
intention to effect the Event; or
(e) the Board of Directors adopts a resolution to the
effect that, for purposes of this Warrant, a Change in Control has occurred.
SECTION II.2. (1) The Warrant Holder may exercise this Warrant in whole
or in part by surrender of this Warrant, with the Subscription Form duly
executed, to the Company at its corporate office in Stuart, Florida, together
with the Purchase Price of each share of Common Stock being purchased in lawful
money of the United States, or by certified check or official bank check payable
in United States dollars to the order of the Company, subject to compliance with
all the other conditions set forth in this Warrant.
(2) Upon receipt of this Warrant with the Subscription Form
duly executed and accompanied by payment of the aggregate Purchase Price for the
shares of Common Stock for which this Warrant is being exercised, the Company
shall cause to be issued certificates for the total number of whole shares (as
provided in Section 3.2) of Common Stock for which this Warrant is being
exercised in such denominations as are required for delivery to the Warrant
Holder, and the Company will promptly deliver those certificates to the Warrant
Holder and in any event within ten (10) days of the exercise of this Warrant.
(3) If the Warrant Holder exercises this Warrant with respect
to fewer than all the shares of Common Stock that may be purchased by exercise
of this Warrant, the Company will execute a new Warrant of like tenor for the
balance of the shares of Common Stock that may be purchased by exercise of this
Warrant and deliver that new Warrant to the Warrant Holder.
(4) The Company covenants and agrees that it will pay when due
any and all taxes and incidental expenses which may be payable in respect of the
issue of this Warrant, or the issue of any Warrant Shares upon the exercise of
this Warrant other than income or similar taxes of any kind imposed upon the
holder of this Warrant. The Company will not, however, be required to pay any
tax which may be payable in respect of any transfer involved in the issuance or
delivery of this Warrant or of Warrant Shares in a name other than that of the
Warrant Holder at the time of surrender, and until the payment of any such tax,
the Company will not be required to transfer this Warrant or issue the Warrant
Shares which are subject to the tax.
<PAGE>
ARTICLE III
ADJUSTMENT OF PURCHASE PRICE, NUMBER
OF SHARES OR NUMBER OF WARRANTS
SECTION III.1. The Purchase Price, the number and type of securities
issuable on exercise of this Warrant and the number of Warrants outstanding are
subject to adjustment from time to time as follows:
(1) If the Company issues any shares of its Common Stock as a
dividend or other distribution on its Common Stock, the Purchase Price then in
effect will be proportionately reduced at the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive the dividend or other distribution. For example, if the Company
distributes one share of Common Stock as a dividend on each outstanding share of
Common Stock, the Purchase Price would be reduced by 50%. If the Company issues
as a dividend or other distribution on its Common Stock any securities which are
convertible into, or exchangeable for, shares of its Common Stock, such dividend
or distribution will be treated as a dividend or distribution of the Common
Stock into which the securities may be converted, or for which they may be
exchanged, and the Purchase Price shall be proportionately reduced.
(2) If the outstanding shares of Common Stock are subdivided
into a greater number of shares of Common Stock, then the Purchase Price will be
proportionately reduced at the opening of business on the day following the day
when the subdivision becomes effective, and if the outstanding shares of the
Common Stock are combined into a smaller number of shares of Common Stock, the
Purchase Price will be proportionately increased at the opening of business on
the day following the day when the combination becomes effective.
(3) If by reason of a merger, consolidation, reclassification,
reorganization, or the sale of substantially all of the assets of the Company to
another person or similar corporate event, the holders of the Common Stock
receive securities or assets other than Common Stock, upon exercise of this
Warrant after that corporate event, the holder of this Warrant will be entitled
to receive the securities or assets the holder would have received if the holder
had exercised this Warrant immediately before the first such corporate event and
not disposed of the securities or assets received as a result of that or any
subsequent corporate event; and in any such case appropriate provisions shall be
made with respect to the rights and interests of the Warrant Holder to the end
that the provisions hereof (including without limitation provisions for
adjustment of the Purchase Price and of the number of shares issuable upon the
exercise of this Warrant) shall thereafter be applicable, as nearly as may be,
in relation to any shares of stock, securities or property thereafter
deliverable upon the exercise hereof. The Company shall not effect any such
consolidation, merger or sale, unless prior to or simultaneously with the
consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets shall assume by a written instrument executed and mailed by registered
mail or delivered to the Warrant Holder at the last
<PAGE>
address of the Warrant Holder appearing on the books of the Company, the
obligation of the Company to deliver to the Warrant Holder such shares of stock,
securities or property as, in accordance with the foregoing provisions, the
Warrant Holder may be entitled to receive and the assumption of all other
liabilities and obligations of the Company hereunder.
SECTION III.2. (1) Upon each adjustment of the Purchase Price pursuant
to Section 3.1 hereof, this Warrant will after the adjustment evidence the right
to purchase, at the adjusted Purchase Price, the number of shares (calculated to
the nearest hundredth) obtained by (i) multiplying the number of shares issuable
on exercise of this Warrant immediately prior to the adjustment by the Purchase
Price in effect immediately prior to the adjustment and (ii) dividing the
resulting product by the Purchase Price in effect immediately after the
adjustment.
(2) If there are any adjustments to the Purchase Price
pursuant to Article III prior to May 1, 2002, then in lieu of adjusting the
Purchase Price to $20.00 as of such date, the Purchase Price in effect as of
April 30, 2002 shall be multiplied by the fraction 20/17 to determine the
Purchase Price effective as of May 1, 2002. Such Purchase Price will thereafter
continue to be subject to adjustment pursuant to Section 3.1.
(3) No fractional shares or scrip shall be issued upon
exercise of this Warrant. If Warrant Holder upon exercise of this Warrant is
entitled to receive a fractional share of Common Stock, then an amount equal to
such fractional share multiplied by the fair market value of a share of Common
Stock shall be paid in cash to such registered Warrant Holder.
SECTION III.3. Whenever the Purchase Price or the number of shares or
type of securities issuable on exercise of this Warrant is adjusted as provided
in this Article III, the Company will compute the adjusted Purchase Price and
the adjusted number of Warrant Shares and will prepare a certificate signed by
its President or any Vice President, and by its Treasurer or Secretary setting
forth the adjusted Purchase Price and the adjusted number of Warrant Shares and
showing in reasonable detail the facts upon which the adjustments were based and
mail a copy of that certificate to the Warrant Holder.
SECTION III.4. If at any time when this Warrant is outstanding:
(a) the Company declares a dividend (or authorizes any other
distribution) on its Common Stock payable otherwise than in
cash out of its undistributed net income;
(b) the Company authorizes the granting to the holders of its
Common Stock of rights to subscribe for or purchase any shares
of its capital stock or assets or any other rights;
(c) the Company authorizes a reclassification, split or
combination of the Common Stock, or a consolidation or merger
to which the Company is a party or a sale or transfer of all
or substantially all the assets of the Company; or
<PAGE>
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then and in each such event the Company will mail or cause to be mailed to the
Warrant Holder a notice specifying (i) the date on which any such record is to
be taken for the purpose of such dividend, distribution or right and stating the
amount and character of such dividend, distribution or right, (ii) the date on
which any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to take place,
and the time, if any is to be fixed, as of which the holders of record of equity
of the Company shall be entitled to exchange their securities of the Company for
securities or other property deliverable on such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding-up, and (iii) the amount and character of
any stock or other securities, or rights or options with respect thereto,
proposed to be issued or granted, the date of such proposed issue or grant and
the persons or class of persons to which such proposed issue or grant is to be
offered or made. Such notice shall be mailed at least twenty (20) days prior to
the record date, or other date, for determining the stockholders entitled to
receive the dividend, distribution or rights, or the securities or other
property deliverable as a result of such action.
SECTION III.5. The form of this Warrant need not be changed because of
any change in the Purchase Price or in the number of Warrant Shares, and
Warrants issued after that change may continue to describe the Purchase Price
and the number of Warrant Shares which were described in this Warrant as
initially issued.
SECTION III.6. Before taking any action which would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the Common
Stock, the Company will take all corporate action which may, in the opinion of
its counsel, be necessary in order that the Company may validly and legally
issue fully paid and nonassessable shares of Common Stock at the adjusted
Purchase Price.
SECTION III.7. The Company will not, by amendment of its certificate of
incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holder of this Warrant against
impairment. Without limiting the generality of the foregoing, the Company (a)
will not increase the par value of any shares of Common Stock receivable on the
exercise of this Warrant above the amount payable therefor on such exercise, (b)
will take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and non-assessable Common Stock
on the exercise of the Warrant, and (c) will not transfer all or substantially
all of its properties and assets to any other person (corporate or otherwise),
or consolidate with or merge into any other person or permit any such person to
consolidate with or
<PAGE>
merge into the Company (if the Company is not the surviving person), unless such
other person shall expressly assume in writing and will be bound by all the
terms of the Warrant.
ARTICLE IV
OTHER PROVISIONS RELATING TO
RIGHTS OF WARRANT HOLDER
SECTION IV.1. If this Warrant is duly exercised, the Warrant Holder
will for all purposes be deemed to become the holder of record of the Warrant
Shares as to which this Warrant is exercised on, and the certificate for such
shares will be dated, the date this Warrant is surrendered for exercise and the
Purchase Price paid in accordance with section 2.2, except that if that date is
not a Business Day, the Warrant Holder will be deemed to become the record
holder of the Warrant Shares on, and the certificate will be dated, the next
succeeding Business Day. The Warrant Holder will not be entitled to any rights
as a holder of the Warrant Shares, including the right to vote and to receive
dividends, until the Warrant Holder becomes or is deemed to become the holder of
such shares pursuant to the terms hereof.
SECTION IV.2. (1) The Company covenants and agrees that it will at all
times reserve and keep available for the exercise of this Warrant a sufficient
number of authorized but unissued shares of Common Stock to permit the exercise
in full of this Warrant.
(2) Prior to the issuance of any shares of Common Stock
upon exercise of this Warrant, the Company shall use
its reasonable best efforts to cause those shares to
be authorized for listing, to the extent not
previously authorized for listing, and to maintain
such listing on any securities exchange or trading
system upon which the Common Stock is then listed.
(3) The Company covenants that all shares of Common Stock
issued upon exercise of this Warrant and against
payment of the Purchase Price will be duly
authorized, validly issued, fully paid and
nonassessable.
(4) The Company will use its best efforts to timely file
all reports which may be required to be filed under
the Securities Exchange Act of 1934 by the Company
and to otherwise comply with all rules and
regulations of the Securities Exchange Commission
applicable in connection with the use of Rule 144
promulgated under the Securities Act of 1933, as
amended (the "Act"), in order to enable the Warrant
Holder if it so elects to utilize such Rule.
SECTION IV.3. Notices to the Warrant Holder relating to this Warrant
will be effective on the earlier of actual receipt or the third business day
after mailing by first class mail (which shall be certified or registered,
return receipt requested), postage prepaid, addressed to the Warrant Holder at
the address shown on the books of the Company.
<PAGE>
ARTICLE V
TREATMENT OF WARRANT HOLDER
SECTION V.1. Prior to presentation of this Warrant for registration of
transfer, the Company may treat the Warrant Holder for all purposes as the owner
of this Warrant and the Company will not be affected by any notice to the
contrary.
ARTICLE VI
COMBINATION, EXCHANGE AND TRANSFER OF WARRANTS
SECTION VI.1. This Warrant may not be sold, hypothecated, assigned or
transferred, in whole or in part without the prior written consent of the
Company.
SECTION VI.2. Any transfer permitted under this Warrant will be made by
surrender of this Warrant to the Company at its principal office with the Form
of Assignment duly executed and funds sufficient to pay any transfer tax. In
such event the Company will, without charge, execute and deliver a new Warrant
to and in the name of the assignee named in the instrument of assignment and
this Warrant will promptly be canceled, and if the assignor does not transfer
all of its Warrants hereunder, the Company will execute and deliver a new
Warrant to and in the name of the assignor representing the remaining Warrants
held by the assignor.
SECTION VI.3. This Warrant may be divided or combined with other
Warrants which carry the same rights upon presentation of them at the principal
office of the Company together with a written notice signed by the Warrant
Holder, specifying the names and denominations in which new Warrants are to be
issued.
SECTION VI.4. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and, in the case of loss, theft or destruction, of reasonably
satisfactory indemnification, or, in the case of mutilation, upon surrender of
the mutilated Warrant, the Company will execute and deliver a new Warrant
bearing the same terms and date as the lost, stolen or destroyed Warrant, which
will thereupon become void.
SECTION VI.5. This Warrant and the Warrant Shares may not be sold or
otherwise disposed of except as follows:
(a) Subject to Section 6.1 as to the Warrants, to a
person, who, in the opinion of counsel reasonably
satisfactory to the Company, is a person to whom this
Warrant or the Warrant Shares may legally be
transferred without registration and without the
delivery of a current prospectus under the Act;
<PAGE>
(b) to any person in a transaction that, in the opinion
of counsel reasonably satisfactory to the Company,
complies with the provisions of Rule 144 under the
Act; or
(c) to any person upon delivery of a prospectus included
in a then effective registration statement under the
Act relating to the sale or disposition of the
securities.
SECTION VI.6. Certificates for Warrant Shares issued upon exercise of
any Warrants or transferred pursuant to Section 6.5(a) shall bear an appropriate
legend, if applicable, to the effect that the Warrant Shares represented thereby
have not been registered under the Act and may not be transferred except
pursuant to an effective registration statement under the Act or an exemption
from the registration requirements of the Act.
ARTICLE VII
REGISTRATION UNDER THE SECURITIES ACT OF 1933
SECTION VII.1. (1) Incidental (Piggyback) Registration. Whenever the
Company, at any time or from time to time after May 1, 1997, proposes to file a
registration statement to register any of its securities, whether for sale by
the Company or its stockholders, under the Act on any form (other than a
registration statement on Form S-4 for securities to be offered in a transaction
of the type referred to in Rule 145 under the Act or on Form S-8 for securities
offered to employees of the Company pursuant to any employee benefit plan), and
the registration form to be used may be used for the registration of the sale of
Restricted Shares, the Company will give prompt written notice, not less than 10
days nor more than 90 days prior to the filing of the registration statement, to
each registered holder of the Warrant and/or Restricted Shares (each, a
"Holder") and will include in such registration statement such number of
Restricted Shares held by each Holder and/or issuable to each Holder upon
exercise of the Warrant which the Holder requests to be included in such
registration for sale by such Holder; provided, however, that (a) the Company
shall not be required to include any Restricted Shares in any registration
pursuant to this paragraph (1) unless the Holder or Holders of at least a
majority of the Warrant Shares issuable upon exercise of the Warrant and
Restricted Shares, taken together, shall have requested to include shares in
such registration as herein provided, (b) the Company shall not be required to
include a Holder's Restricted Shares in a registration pursuant to this
paragraph (1) if the Holder's request is made after April 30, 2008 and (c) the
Company shall not be required to include a Holder's Restricted Shares in a
registration statement pursuant to this paragraph (1) if all of such Restricted
Shares may be sold or transferred pursuant to Rule 144 of the Act. Any Holder's
request for inclusion of Restricted Shares in a proposed registration shall be
made within 10 days of receipt of written notice from the Company. The Company
shall use its best efforts to cause any registration statement under this
paragraph (1) to promptly become effective and to remain effective for at least
nine months or, if sooner, until all Restricted Shares included in such
registration have been sold by the Holder(s) thereof. In the event that the
proposed registration by the Company is, in whole or in part, an underwritten
public offering
<PAGE>
of securities of the Company, the Company shall not be required to include any
Restricted Shares in such underwriting unless the Holders of the Restricted
Shares to be included agree to accept the offering on the same terms and
conditions as the shares of Common Stock, if any, otherwise being sold through
underwriters under such registration and further provided, however, that if the
managing underwriter advises the Company that the inclusion of all Restricted
Shares proposed to be included by the Holders in the Underwritten public
offering (the "Proposed Shares"), together with the other shares of Common Stock
proposed to be included therein by persons other than the Company (the "Other
Shares"), would, in the managing underwriter's reasonable judgment, materially
jeopardize the success of the Company's offering, then the Company shall be
required to include in the offering (in addition to the number of shares to be
sold by the Company) only that aggregate number (the "Allowed Number") of
Proposed Shares and Other Shares that the managing underwriter reasonably
believes will not materially jeopardize the success of the Company's offering,
and the number of Proposed Shares and Other Shares to be included in such
underwritten public offering shall be reduced pro rata to the extent required
such that the sum of the Proposed Shares to be included in the offering and the
Other Shares to be included in the offering equals the Allowed Number.
(2) Registration Procedures. The following provisions will be
applicable to any registration statement relating to Restricted Shares pursuant
to this section 7.1:
(a) Each Holder whose Restricted Shares are to be
included in the registration statement (each, a "Seller") will furnish the
Company with such appropriate information relating to the Seller as the Company
reasonably requests in writing. Following the effective date of the registration
statement, the Company will upon the request of any Seller promptly supply such
number of prospectuses meeting the requirements of the Act as may be reasonably
requested by the Seller to permit the Seller to make a public offering of all
Restricted Shares of the Seller included in the registration statement. The
Company will use its best efforts to qualify the Restricted Shares for sale in
such states as the Sellers may reasonably designate; provided that in no event
will the Company be required to file a general consent to service of process.
(b) The Company will indemnify and hold harmless each
Seller, and each underwriter within the meaning of the Act, if any, who may
purchase Restricted Shares from or sell Restricted Shares for any Seller, and
the directors, officers, employees and agents of the seller and any such
underwriter, and each person, if any, who controls any such Seller or
underwriter within the meaning of Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended, from and against any and all
losses, claims, damages, liabilities and expenses, including, without
limitation, attorneys' fees and expenses (collectively, "Damages") arising out
of or based upon any untrue statement or alleged untrue statement of a material
fact contained in any registration statement or any related prospectus or
preliminary prospectus, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such Damages arise out of or are based
upon an untrue statement or alleged untrue statement or omission or alleged
omission based upon information furnished in writing to the Company by the
Seller or the underwriter, as the case may be, expressly
<PAGE>
for use in the registration statement; provided, however, that the Company will
not be required to indemnify any Seller or underwriter or controlling person
with regard to a registration statement unless the Seller or underwriter, as the
case may be, agrees to indemnify the Company, its directors, each officer
signing the registration statement and each person, if any, who controls the
Company within the meaning of the Act from and against any and all Damages
caused by any untrue statement or alleged untrue statement of a material fact
contained in a registration statement or any related prospectus or preliminary
prospectus pertaining to the Restricted Shares, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only to the
extent such Damages arise out of an untrue statement or alleged untrue statement
or omission or alleged omission based upon information relating to such Seller
or underwriter, as the case may be, and furnished in writing to the Company by
the Seller or underwriter expressly for use in the registration statement or any
related prospectus or preliminary prospectus.
(3) Expenses. All costs and expenses incident to the
registrations and qualifications required by this Section 7.1 shall be borne by
the Company, except that (i) any underwriting discounts attributable to
Restricted Shares sold by the Sellers shall be borne by the Sellers of such
Restricted Shares, and (ii) the Holders shall bear the costs and expenses of
their counsel.
ARTICLE VIII
OTHER MATTERS
SECTION VIII.1. The Company will from time to time promptly pay,
subject to the provisions of paragraph (4) of Section 2.2, all taxes and charges
that may be imposed upon the Company in respect of the issuance or delivery of
Warrant Shares upon the exercise of this Warrant by the Warrant Holder.
SECTION VIII.2. All the covenants and provisions of this Warrant by or
for the benefit of the Company will bind and inure to the benefit of its
successors and assigns.
SECTION VIII.3. All notices and other communications under this Warrant
must be in writing. Any notice or communication to the Company will be effective
upon the earlier of actual receipt or the third business day after mailing by
first-class mail (which shall be certified or registered, return receipt
requested), postage prepaid, addressed (until another address is designated by
the Company) as follows:
NuCo2 Inc.
2800 Southeast Market Place
Stuart, Florida 34997
Attn: Chairman of the Board
with a copy to:
<PAGE>
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
Attn: Steven Wolosky, Esq.
Any notice or demand authorized by this Warrant to be given or made by
the Company to the Warrant Holder must be given in accordance with Section 4.3.
SECTION VIII.4. The validity, interpretation and performance of this
Warrant will be governed by the laws of the State of Florida.
SECTION VIII.5. Nothing in this Warrant will give any person,
corporation or other entity other than the Company and the Warrant Holder(s) any
right or claim under this Warrant, and all agreements in this Warrant will be
for the sole benefit of the Company, the Warrant Holder(s) and their respective
successors.
SECTION VIII.6. The Article headings in this Warrant are for
convenience only, are not part of this Warrant and will not affect the
interpretation of its terms.
SECTION VIII.7. Provided that BOC shall own at least an aggregate of
50% of the number of Warrant Shares issuable upon exercise of the Warrant and/or
Restricted Shares, (i) BOC may designate one (1) representative to receive
notice of and attend all meetings of the Board of Directors of the Company or
(ii) the Company shall appoint one (1) representative designated by BOC to the
Board of Directors of the Company.
IN WITNESS WHEREOF, this Warrant has been duly executed by the Company
as of the 1st day of May, 1997.
NuCo2 Inc.
By:
-------------------------------
Edward M. Sellian
Chairman of the Board and Chief
Executive Officer
<PAGE>
SUBSCRIPTION FORM
To be Executed By The Warrant Holder If He Desires
To Exercise The Warrant In Whole Or In Part:
To: NuCo2 Inc.
The undersigned (__________________________________)
Please insert Social Security or other
identifying number of Holder
hereby irrevocably elects to exercise the right of purchase represented by the
within Warrant for, and to purchase thereunder, _____________________ shares of
Common Stock of NuCo2 Inc. and tenders payment to the order of NuCo2 Inc. in the
amount of $_________. The undersigned requests that certificates for those
shares of Common Stock be issued as follows:
Name:________________________
Address:_____________________
Deliver to:__________________
Address:_____________________
and that, if the number of shares of Common Stock is not all the shares of
Common Stock purchasable by exercise of the Warrant, that a new Warrant for the
balance of the shares of Common Stock purchasable under the within Warrant be
registered in the name of, and delivered to, the undersigned at the address
stated below:
Address:_____________________
Date:________________________
Signature______________________
<PAGE>
FORM OF ASSIGNMENT
(To be Executed Only Upon An Assignment)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________ the right to purchase ________ shares of Common
Stock of NuCo2 Inc. evidenced by the within Warrant.
Signature______________________
Signature Guaranteed:
________________________________
