STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), is made and entered
into this 7th of December, 2000, by and between THE BOC GROUP, INC., a Delaware
corporation, acting through its BOC Edwards division ("Buyer") and NUCO2 Inc., a
Florida corporation (the "Company").
R E C I T A L:
The Company desires to sell and Buyer desires to purchase from the
Company, on the terms and subject to the conditions set forth in this Agreement,
One Million One Hundred Eleven Thousand One Hundred Eleven (1,111,111) newly
issued shares (the "Common Shares") of Common Stock, par value $0.001 per share,
of the Company ("Common Stock") in exchange for the Common Share Purchase Price
(as defined herein) and other agreements, obligations and consideration as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and promises contained
herein, the parties agree as follows:
ARTICLE 1 PURCHASE OF COMMON SHARES
1.1 Purchase of Common Shares. Upon the terms and subject to the
conditions of this Agreement and in reliance upon the representations,
warranties and covenants contained herein, Buyer agrees to purchase the Common
Shares from the Company for the Common Share Purchase Price, and the Company
agrees to sell and issue the Common Shares to Buyer at Closing.
1.2 Purchase Price for Common Shares. The purchase price of the Common
Shares (the "Common Share Purchase Price") shall be Ten Million Dollars
($10,000,000) which shall be payable to the Company by Buyer at Closing.
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ARTICLE 2 THE CLOSING
2.1 Closing. The Closing of the transaction shall occur at the offices
of the Buyer on the date hereof or at such other time and/or place as may be
mutually agreed upon by the parties (the "Closing Date"). All component parts of
the transaction shall be deemed to occur simultaneously on the Closing Date.
2.2 Closing Deliveries by Company to Buyer. At the Closing, Company
shall deliver or cause to be delivered to Buyer the following:
(a) An amendment (the "Amendment") to the Special Warrant to
Purchase Common Stock of the Company (No. W-9), dated May 1, 1997 (the "Original
Warrant"), executed by the Company in the form attached hereto as Exhibit A
(together with the Original Warrant, the "Warrant");
(b) A certificate evidencing the Common Shares being purchased by
the Buyer, registered in the name of Buyer; and
(c) A certificate or confirmation that the Company is in existence
and good standing in the State of Florida on and as of the Closing Date.
2.3 Delivery by Buyer to Company. At the Closing, Buyer shall deliver
or cause to be delivered to Company the following:
(a) The Common Share Purchase Price; and
(b) The Amendment executed by Buyer in the form attached hereto as
Exhibit A.
2.4 Execution of Additional Closing Agreements. At the Closing, the
parties shall execute, acknowledge and deliver, or cause to be executed,
acknowledged or delivered, such other instruments or documents as may be
reasonably necessary to carry out the transaction contemplated by this
Agreement.
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ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF COMPANY
The Company hereby represents and warrants to Buyer as follows:
3.1 Existence. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida and has all
requisite corporate power and authority to own its properties and assets and to
carry on its business as it is now being conducted and as proposed to be
conducted. Each of the Company and its material domestic subsidiaries is duly
qualified to transact business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the properties owned or leased by
it or the nature of its business makes such qualification necessary, except for
any such failures to so qualify or be in good standing that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. For purposes of this Agreement, "Material Adverse Effect" shall
mean a material adverse effect on (i) the business, assets, property, operations
or condition, financial or otherwise, of the Company and its subsidiaries taken
as a whole or (ii) the ability of the Company to perform any of its obligations
under this Agreement or the transaction contemplated hereby.
3.2 No Breach. None of the execution and delivery of this Agreement,
the Common Shares and the Amendment, the consummation of the transactions herein
and therein contemplated and compliance with the terms and provisions hereof and
thereof will conflict with or result in a breach of, or require any consent
under, the charter or by-laws of the Company or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority, or any agreement or instrument to which the Company or
any of its subsidiaries is a party or by which any of them is bound or to which
any of them is subject, or constitute a default under any such agreement or
instrument, which conflict, breach, failure to obtain consent or default would
have a Material Adverse Effect.
3.3 Corporate Action. The Company has all necessary corporate power and
authority to execute, deliver and perform its obligations under this Agreement;
the execution, delivery and performance by the Company of this Agreement, have
been duly authorized by all necessary corporate
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action (including all required shareholder action) on the part of the Company;
this Agreement has been duly executed and delivered by the Company and
constitutes a valid and legally binding obligation of the Company entitled to
the benefits provided herein, except as enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally, and by general principles of equity (regardless of whether
enforcement is sought at equity or in law), the Common Shares shall, when issued
and delivered pursuant to this Agreement will be duly and validly issued, fully
paid and nonassessable, and the Common Stock underlying by the Warrant (the
"Warrant Shares") shall, when issued and delivered in accordance with the terms
of the Warrant, be duly and validly issued, fully paid and nonassessable.
3.4 Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental authority are necessary for the
execution, delivery or performance by the Company of this Agreement or for the
validity or enforceability hereof. Any such action required to be taken as a
condition to the execution and delivery of this Agreement, the issuance of the
Common Shares and the Amendment, has been duly taken by all such governmental
authorities or other persons, as the case may be.
3.5 Investment Company Act. Neither the Company nor any of its
subsidiaries is an "investment company," or a company "controlled by" an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
3.6 Public Utility Holding Company Act. Neither the Company nor any of
its subsidiaries is a "holding company," or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company," within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
3.7 Capitalization.
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(a) Upon the issuance of the Common Shares under this Agreement,
the total number of shares of capital stock which the Company has authority to
issue and the outstanding shares of the Company will be as set forth in Schedule
3.7(a) hereto. Upon the issuance of the Common Shares under this Agreement, the
Company shall not have outstanding any stock or securities convertible into or
exchangeable for any shares of capital stock nor shall it have outstanding any
rights to subscribe for or to purchase, or any options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, any capital stock or
stock or securities convertible into or exchangeable for any capital stock other
than as listed on Schedule 3.7(a).
(b) There is not in effect on the date hereof any agreement by the
Company pursuant to which any holders of securities of the Company have a right
to cause the Company to register such securities under the Securities Act of
1933, as amended (the "Securities Act") other than as set forth on Schedule
3.7(b).
(c) The Warrant Shares have been authorized and adequately reserved
in contemplation of the exercise of the Warrant and the issuance thereof will
not have been subject to any preemptive rights or made in violation of any
applicable law.
3.8 SEC Documents; Financial Statements. The Company has filed in a
timely manner all documents that the Company was required to file with the
Securities and Exchange Commission (the "Commission") under Sections 13, 14(a)
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since its initial public offering. As of their respective filing dates,
all documents filed by the Company with the Commission ("SEC Documents")
complied in all material respects with the requirements of the Exchange Act or
the Securities Act, as applicable. None of the SEC Documents as of their
respective dates contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the
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circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents (the "Financial
Statements") comply as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the
Commission with respect thereto. The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis and fairly present the consolidated financial position of the Company and
any of its subsidiaries at the dates thereof and the consolidated results of
their operations and consolidated cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal, recurring
adjustments). Except as set forth or reflected in the SEC Documents filed prior
to the date hereof, the Company does not have any liabilities or obligations of
any nature (whether accrued, absolute, contingent, unasserted or otherwise) that
individually or in the aggregate would be expected to have a Material Adverse
Effect.
3.9 Provided Information. To the knowledge of the Company, all written
information (excluding information of a general economic nature and financial
projections) concerning the Company and the transactions contemplated hereby
that has been prepared by or on behalf of the Company or any of the Company's
authorized representatives and that has been made available to Buyer or any of
its authorized representatives in connection with the issuance and sale of the
Common Shares, when taken as a whole, was, at the time made available, correct
in all material respects and did not, at the time made available, contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein not misleading in light of the
circumstances under which such statements were made. All financial projections
concerning the Company that have been prepared by or on behalf of the Company or
any of the Company's authorized representatives and that have been made
available to Buyer or any of its authorized representatives in connection with
the issuance and sale of the Common Shares have been, and at the time made
available will be, reasonably prepared on a basis reflecting the best currently
available estimates and judgments of the Company's management as to the future
financial performance of the Company and the individual business segments
thereof.
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3.10 Material Adverse Change. Except as disclosed in the SEC Documents,
since September 30, 2000, there has not been any event, occurrence or
development of a state of circumstances or facts that has had, or could have
reasonable been expected to have, (i) a Material Adverse Effect or (ii) a
material adverse effect on the ability of the Company to perform its obligations
under this Agreement.
3.11 Litigation. There are not any (a) outstanding judgments against or
affecting the Company or any of its subsidiaries, (b) proceedings pending or, to
the knowledge of the Company, threatened against or affecting the Company or any
of its subsidiaries or (c) investigations by any governmental authority that
are, to the knowledge of the Company, pending or threatened against of affecting
the Company or any of its subsidiaries that (i) in any manner challenge or seek
to prevent, enjoin, alter or materially delay the issuance of the Common Shares
or (ii) if resolved adversely to the Company or any subsidiary, would have,
individually or in the aggregate, a Material Adverse Effect.
3.12 Permits and Licenses. The Company and its subsidiaries have
obtained all governmental permits, licenses, franchises and authorizations
required for the Company and its subsidiaries to conduct their respective
businesses as currently conducted, except for those of which the failure to
obtain would not have a Material Adverse Effect.
3.13 Properties.
(a) Each of the Company and its subsidiaries has good title to, or
valid leasehold interests in, all its real and personal property material to its
business, except (i) as set forth in Schedule 3.13 and (ii) for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Company and its subsidiaries owns, or is licensed
to use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Company and its
subsidiaries, to the best of the Company's knowledge, does not infringe
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upon the rights of any other person or entity, except for any such infringements
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
3.14 Environmental Matters. Except with respect to any matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, neither the Company nor any of its subsidiaries (i)
has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability. As used in this Agreement,
"Environmental Laws" means all Federal, state, local and foreign statutes and
codes or regulations, rules or ordinances issued, promulgated, or approved
thereunder, now or hereafter in effect (including, without limitation, those
with respect to asbestos or asbestos containing material), relating to pollution
or protection of the environment and relating to public health and safety,
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials, into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata), or
(ii) the manufacture, processing, distribution, use generation, treatment,
storage, disposal, transport or handling of any hazardous materials, and (iii)
underground storage tanks and related piping, and emissions, discharges and
releases or threatened releases therefrom, such Environmental Laws to include,
without limitation, (i) the Clean Air Act (42 U.S.C.ss.7401 et seq.), (ii) the
Clean Water Act (33 U.S.C.ss.1251 et seq.), (iii) the Resource Conservation and
Recovery Act (42 U.S.C.ss.6901 et seq.), (iv) the Toxic Substances Control Act
(15 U.S.C.ss.2601 et seq.) and (v) CERCLA, each as amended. As used in this
Agreement, "Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any subsidiary
directly or indirectly resulting from or based upon (i) violation of any
Environmental Law, (ii) the generation, use, handling, transportation, storage,
treatment or disposal of any hazardous materials, (iii) exposure to any
hazardous materials, (iv) the release or threatened release
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of any hazardous materials into the environment or (v) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
3.15 Compliance with Laws and Agreements. Each of the Company and its
subsidiaries is in compliance with all laws, regulations and orders of any
governmental authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
3.16 Taxes. Each of the Company and its subsidiaries has timely filed
or caused to be filed all tax returns and reports required to have been filed
and has paid or caused to be paid all federal, state and foreign taxes,
assessments, customs duties or other governmental charge, levy or assessment
upon assets revenues income or profits (collectively, "Taxes") required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or such subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
3.17 ERISA.
(a) (i) Except as set forth in Schedule 3.17, neither the Company
nor any ERISA Affiliate maintains or contributes to, or has maintained or
contributed to, any Plan that is an ERISA Plan and (ii) neither the Company nor
any of its subsidiaries maintains or contributes to, or has maintained or
contributed to, any Plan that is an "Executive Arrangement" (as that term is
used in the definition of "Plan");
(b) Each Plan has at all times been maintained, by its terms and in
operation, in accordance with all applicable laws, except where such
noncompliance (when taken as a whole) would not have a Material Adverse Effect;
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(c) Neither the Company nor any of its subsidiaries is currently
making, nor has in the last 6 years been obligated to make, contributions
(directly or indirectly) to a Multiemployer Plan, nor is it currently nor will
it become subject to any liability (including withdrawal liability), tax or
penalty whatsoever to any person whomsoever with respect to any Plan including,
but not limited to, any tax, penalty or liability arising under Title I or Title
IV or ERISA or Chapter 43 of the Internal Revenue Code of 1986, as amended (the
"Code"), except where such liabilities (when taken as a whole) would not have a
Material Adverse Effect; and
(d) The Company and each ERISA Affiliate has made full and timely
payment of all amounts (i) required to be contributed under the terms of each
Plan and applicable law and (ii) required to be paid as expenses of each Plan.
No Plan has an "amount of unfunded benefit liabilities" (as defined in Section
4001(a)(18) of ERISA).
(e) As used in this Agreement, "ERISA" means the Employee
Retirement Income Security Act of 1974, as amended from time to time and the
rules and regulations promulgated thereunder.
(f) As used in this Agreement, "ERISA Affiliate" means any trade or
business (whether or not incorporated) that, together with the Company, is
treated as a single employer under Section 414(b) or (c) of the Code or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as
a single employer under Section 414 of the Code.
(g) As used in this Agreement, "ERISA Event" means: (i) any
"reportable event", as defined in Section 4043 of ERISA or the regulations
issued thereunder with respect to a Plan (other than an event for which the
30-day notice period is waived); (ii) the existence with respect to any Plan of
an "accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (iii) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan; (iv) the
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incurrence by the Company or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (v) the receipt
by the Company or any ERISA Affiliate from the PBGC or a plan administrator of
any notice relating to an intention to terminate any Plan or Plans or to appoint
a trustee to administer any Plan; (vi) the incurrence by the Company or any of
its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (vii) the receipt by the
Company or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
(h) As used in this Agreement, "ERISA Plan" means any employee
pension benefit plan (other than a Multiemployer Plan) subject to the provisions
of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which the Company or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
(i) As used in this Agreement, "Multiemployer Plan" means a
multiemployer plan as defined in Section 4001(a)(3) of ERISA as to which the
Company, any Subsidiary or any ERISA Affiliate is obligated to make, has made,
or will be obligated to make contributions on behalf of participants who are or
were employed by any of them.
(j) As used in this Agreement, "PBGC" means the Pension Benefit
Guaranty Corporation referred to and defined in ERISA and any successor entity
performing similar functions.
(k) As used in this Agreement, "Plan" means any employee benefit
plan, program, arrangement, practice or contract, maintained by or on behalf of
the Company or an ERISA Affiliate,
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which provides benefits or compensation to or on behalf of employees or former
employees, whether formal or informal, whether or not written, including, but
not limited to, the following types of plans:
(i) Executive Arrangements. Any bonus, incentive compensation,
stock option, deferred compensation, commission, severance, "golden parachute",
"rabbi trust", or other executive compensation plan, program, contract
arrangement or practice;
(ii) ERISA Plans. Any "employee benefit plan" as defined in
ERISA, including, but not limited to, any defined benefit pension plan, profit
sharing plan, money purchase pension plan, savings or thrift plan, stock bonus
plan, employee stock ownership plan, Multiemployer Plan, or any plan, fund,
program, arrangement or practice providing for medical (including
post-retirement medical), hospitalization, accident, sickness, disability, or
life insurance benefits; and
(iii) Other Employee Fringe Benefits. Any stock purchase,
vacation, scholarship, day care, prepaid legal services, severance pay or fringe
benefit plan, program, arrangement, contract or practice.
(l) As used in this Agreement, "Withdrawal Liability" means
liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
3.18 Subsidiaries. Set forth in Schedule 3.18 is a complete and correct
list of all of the subsidiaries of the Company as of the date hereof together
with, for each such subsidiary, (i) the jurisdiction of organization of such
subsidiary, (ii) each person or entity holding ownership interests in such
subsidiary and (iii) the nature of the ownership interests held by each such
person or entity and the percentage of ownership of such subsidiary represented
by such ownership interests. Except as set forth in Schedule 3.18, each of the
Company and its subsidiaries owns, free and clear of liens, charges or
encumbrances of any kind or nature, and has the unencumbered right to vote, all
outstanding ownership
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interests in each person or entity shown to be held by it in Schedule 3.18, and
all of the issued and outstanding capital stock of each such person organized as
a corporation is validly issued, fully paid and nonassessable and there are no
outstanding equity rights with respect to such person or entity.
3.19 No Burdensome Restrictions. Neither the Company nor any of its
subsidiaries is party to any contract or agreement that would result in any
burdensome restrictions that might reasonably be expected have a Material
Adverse Effect, including, but not limited to, any collective bargaining
agreements.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Accredited Investor. Buyer hereby represents and warrants to the
Company as of the Closing Date the following:
(a) Buyer is purchasing for its own account, and not with a view to
the resale or distribution of the Common Shares or any part thereof, and Buyer
is prepared to bear the economic risk of retaining the Common Shares for an
indefinite period, all without prejudice, however, to the right of Buyer at any
time lawfully to sell or otherwise to dispose of all or any part of the Common
Shares, (b) Buyer is an "accredited investor" (as defined in Rule 501 of
Regulation D promulgated under the Securities Act), (c) Buyer is experienced in
evaluating and investing in securities, and understands that the Common Shares
will be restricted securities, and that a legend to that effect shall be placed
on the Common Shares, and (d) the acquisition, holding and any transfer of any
restricted securities by Buyer shall be in compliance with all laws applicable
to Buyer.
4.2 Securities Act Compliance. Buyer understands that the Company has
not registered or qualified the Common Shares under the Securities Act or any
applicable state securities laws, and Buyer agrees that the Common Shares shall
not be sold or offered for sale without registration under the Securities Act or
the availability of an exemption therefrom.
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4.3 Transfers of Common Shares Pursuant to Registration Statements and
Rule 144, Etc. The Common Shares may be offered or sold by the holder thereof
pursuant to (a) an effective registration statement under the Securities Act,
(b) to the extent applicable, Rule 144 or (c) any other applicable exemption
from the Securities Act.
4.4 Notice of Certain Transfers. If any holder of any Common Shares
desires to transfer such Common Shares other than pursuant to an effective
registration statement, Rule 144 under the Securities Act or in accordance with
this Agreement, such holder shall deliver to the Company at least seven business
days prior written notice with respect to the proposed transfer, together with
an opinion (at such holder's expense) of counsel reasonably satisfactory to the
Company, to the effect that an exemption from registration under the Securities
Act is available and specifying the applicable exemption.
4.5 Restrictive Legend. Unless and until otherwise permitted by
applicable law and this Agreement, each certificate for the Common Shares issued
under this Agreement, each certificate for any Common Shares issued to any
subsequent transferee of any such certificate, shall be stamped or otherwise
imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, AND ACCORDINGLY, SUCH SECURITIES MAY NOT BE TRANSFERRED, SOLD
OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE REGISTRATION OR
QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR
APPLICABLE EXEMPTIONS THEREFROM."
4.6 Removal of Restrictive Legend. The restrictions imposed by
Paragraph 4.5 upon the transferability of the Common Shares shall cease and
terminate as to any particular Common Share when
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such Common Share shall have been effectively registered under the Securities
Act and sold by the holder thereof in accordance with such registration or sold
under and pursuant to Rule 144 or is eligible to be sold pursuant to Paragraph
(k) of Rule 144. Whenever the restrictions imposed by Paragraph 4.5 shall
terminate as to any Common Share as hereinabove provided, the holder thereof
shall, upon written request, be entitled to receive from the Company, without
expense, a new certificate evidencing such Common Share not bearing the
restrictive legend otherwise required to be borne by a certificate evidencing
such Common Share.
ARTICLE 5 COVENANTS OF THE PARTIES
5.1 Board Seat. At Closing, the Company will cause one person
designated by Buyer to be appointed to the Board of Directors of the Company.
Thereafter, provided that Buyer owns at least 1,000,000 of the issued and
outstanding shares of Common Stock, Buyer shall continue to have the right to
cause the Company to appoint Buyer's designee to the Board of Directors of the
Company.
5.2 Standstill.
(a) For a period of three years from the Closing, Buyer will not
acquire any shares of Common Stock other than the Common Shares and the Warrant
Shares without the prior written consent of the Board of Directors of the
Company; provided, however, Buyer may acquire at any time, in the open market or
otherwise, additional shares of Common Stock up to a 19.99% ownership interest
in the Company without any prior written consent.
(b) For a period of three years from the Closing, Buyer will not,
nor will it permit any of its affiliates (as such term is used in Rule 12b-2
promulgated under the Exchange Act) to, (i) seek representation on the Board of
Directors of the Company in excess of one seat, (ii) participate in a proxy
contest, (iii) join a group for purposes of Section 13(d) of the Exchange Act,
or (iv) otherwise attempt to control the Company (other than through its one
seat on the Board of Directors of the Company).
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(c) Upon the occurrence of any of the following "Significant
Events" the provisions of Paragraphs 5.2(a) and 5.2(b) shall terminate: (i) the
acquisition by any person or group of beneficial ownership of Voting Securities
representing 20% or more of the then outstanding Voting Securities, (ii) the
announcement or commencement by any person or group of a tender or exchange
offer to acquire Voting Securities which, if successful, would result in such
person or group owning, when combined with any other Voting Securities owned by
such person or group, 20% or more of the then outstanding Voting Securities,
(iii) the Company entering into, or otherwise determines to seek to enter into,
any merger, sale or other business combination transaction pursuant to which the
outstanding shares of Common Stock of the Company would be converted into cash
or securities of another person or group, or 20% or more of the then outstanding
shares of Common Stock would be owned by persons other than the current holders
of shares of Common Stock, or which would result in all or a substantial portion
of the Company's assets being sold to any person or group, or (iv) five of the
current directors of the Board of Directors of the Company shall cease to be
directors of the Company. As used in this Agreement, "Voting Securities" means
at any time shares of any class of capital stock of the Company which are then
entitled to vote generally in the election of directors; provided that for
purposes of this definition any securities which at such time are convertible or
exchangeable into or exercisable for shares of Common Stock shall be deemed to
have been so converted, exchanged or exercised. The restrictions set forth in
Paragraphs 5.2(a) and 5.2(b) shall terminate with respect to any Common Shares
sold or transferred by Buyer to an unaffiliated third party.
5.3 Voting. For a period of two years from the Closing, Buyer will vote
all shares of Common Stock owned by Buyer for each person nominated to be a
director of the Company by the Board of Directors of the Company. Such voting
obligation shall terminate in the event of a Significant Event. Buyer shall have
no other restrictions on voting. The restrictions set forth in this Paragraph
5.3 shall terminate with respect to any Common Shares sold or transferred by
Buyer to an unaffiliated third party.
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5.4 Drag Along. For a period of two years from the Closing, in the
event that the Company and an independent third party enter into a definitive
agreement whereby such third party agrees to commence an all cash public tender
offer to all shareholders of the Company (on terms that the Board of Directors
of the Company approves and recommends to the shareholders of the Company) for
all the shares of the Company at a minimum price of $17 per share with a
provision that the consummation of the tender offer is subject to the third
party acquiring at least 50% plus Buyer's percentage share ownership of the
Voting Securities of the Company, the Buyer will tender all shares of Common
Stock owned by Buyer to such third party on the same terms and conditions as
offered to all other shareholders of the Company; provided that the other
directors of the Company agree to tender all Voting Securities owned by them to
such third party upon the same terms and conditions; and provided, further that
Buyer may withdraw its tender in the event that the Board of Directors of the
Company discontinues its recommendation of the tender offer to the shareholders
of the Company. For purposes of this provision an independent third party shall
not include the Company or any of its affiliates or any existing shareholder or
group of shareholders that currently hold in the aggregate greater than 5% of
the Voting Securities of the Company. The restrictions set forth in this
Paragraph 5.4 shall terminate with respect to any Common Shares sold or
transferred by Buyer to an unaffiliated third party.
ARTICLE 6 REGISTRATION UNDER THE SECURITIES ACT OF 1933
6.1 Incidental (Piggyback) Registration. Whenever the Company, at any
time or from time to time, proposes to file a registration statement to register
any of its securities, whether for sale by the Company or its stockholders,
under the Securities 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 Securities 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 securities, the Company will give prompt written notice, not less
than 10 days nor more than
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90 days prior to the filing of the registration statement, to each registered
holder of the Common Shares (each, a "Holder") and will include in such
registration statement such number of Common Shares held by each Holder 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
Common Shares in any registration pursuant to this Paragraph 6.1 unless the
Holder or Holders of at least a majority of the Common Shares and restricted
securities, taken together, shall have requested to include shares in such
registration as herein provided, and (b) the Company shall not be required to
include a Holder's Common Shares in a registration statement pursuant to this
Paragraph 6.1 if all of such Common Shares may be sold or transferred pursuant
to Rule 144 of the Act. Any Holder's request for inclusion of Common 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 6.1 to promptly become effective and
to remain effective for at least nine months or, if sooner, until all Common
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 of securities of the Company, the Company shall
not be required to include any Common Shares in such underwriting unless the
Holders of the Common 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 Common 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
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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.
6.2 Registration Procedures. The following provisions will be
applicable to any registration statement relating to Common Shares pursuant to
this Article 6:
(a) Each Holder whose Common 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 Securities Act as may be reasonably
requested by the Seller to permit the Seller to make a public offering of all
Common Shares of the Seller included in the registration statement. The Company
will use its best efforts to qualify the Common 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 Securities Act, if any, who may
purchase Common Shares from or sell Common 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
Exchange Act, from and against any and all losses, claims, damages, liabilities
and expenses, including, without limitation, attorneys' fees and
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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 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 Securities 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 Common 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.
6.3 Expenses. All costs and expenses incident to the registrations and
qualifications required by this Article 6 shall be borne by the Company, except
that (i) any underwriting discounts
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attributable to Common Shares sold by the Sellers shall be borne by the Sellers
of such Common Shares, and (ii) the Holders shall bear the costs and expenses of
their counsel.
ARTICLE 7 GENERAL PROVISIONS
7.1 Indemnification. The parties to this Agreement will indemnify,
defend, and hold harmless the other party against and in respect of any and all
claims, demands, actions, costs, damages, losses, expenses, obligations,
liabilities, and causes of actions, including costs of court and reasonable
attorneys' fees, that the other party incurs or suffers, which arise, result
from, related to any breach of any of such party's representations, warranties,
covenants, or agreements under this Agreement.
7.2 Amendment and Waiver. No amendment or waiver of any provision of
this Agreement shall in any event be effective unless the same shall be in
writing and signed by the parties hereto, and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
7.3 Applicable Law. This Agreement will be governed by, and construed
in accordance with, the laws of the State of Delaware applicable to contracts
executed in and to be performed entirely within Delaware.
7.4 Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
7.5 Parties in Interest. This Agreement shall bind and inure to the
benefit of the parties named herein and their respective heirs, successors and
assigns.
7.6 Expenses. Each party hereto will pay its own expenses in connection
with the transactions contemplated hereby.
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7.7 Entire Transaction. This Agreement and any other agreements
delivered pursuant hereto or thereto constitute the entire understanding among
the parties with respect to the transaction contemplated hereby and supersede
all other agreements and understandings among the parties, both written and
oral.
7.8 Headings. The Paragraph and other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.9 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of the parties under this Agreement would not be
materially and adversely affected thereby, such provision shall be fully
separable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
the remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid or unenforceable provision or
by its severance herefrom, and, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible, and the parties
hereto request the court to whom disputes relating to this Agreement are
submitted to reform the otherwise illegal, invalid or unenforceable provision in
accordance with this Paragraph 7.9.
7.10 Waiver. No waiver by any party of the performance of any
provision, condition or requirement herein shall be deemed to be a waiver of, or
in any manner release the other party from, performance of any other provision,
condition or requirement herein, nor deemed to be a waiver of, or in any manner
release the other party from, future performance of the same provision,
condition or requirement; nor shall any delay or omission by any party to
exercise any right hereunder in any manner impair the exercise of any such right
accruing to it thereafter.
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7.11 No Third-Party Beneficiaries. Nothing contained in this Agreement
shall be construed to give any person other than Buyer, any successor to Buyer,
and the Company any legal or equitable right, remedy or claim under or with
respect to this Agreement.
7.12 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be sent by registered or certified mail,
postage prepaid, overnight courier or by facsimile as follows:
If to Company, to:
NUCO2 Inc.
2800 Southeast Market Place
Stuart, Florida 34997
Attention: President
Facsimile Number: 561-221-1690
with a copy to:
NUCO2 Inc.
2800 Southeast Market Place
Stuart, Florida 34997
Attention: General Counsel
Facsimile Number: 561-221-1690
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If to Buyer, to:
The BOC Group, Inc.
575 Mountain Avenue
Murray Hill, New Jersey 07974
Attention: General Counsel
Facsimile Number: 908-771-4803
with a copy to:
The BOC Group, Inc.
575 Mountain Avenue
Murray Hill, New Jersey 07974
Attention: Vice President
Facsimile Number: 908-464-2234
Any party may change its address for receiving notice by written notice given to
the others named above.
7.13 Press Releases. No party will issue any press release regarding
the transaction contemplated by this Agreement without the prior written consent
of the other party, which consent will not be unreasonably withheld or delayed.
7.14 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING
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WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 7.14.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
NUCO2 INC. THE BOC GROUP, INC.
By: /s/ Michael E. DeDomenico By: /s/ John Walsh
-------------------------------- ---------------------------
Name: Michael E. DeDomenico Name: John Walsh
Title: President and CEO Title: Vice President
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