SCHEDULE 14A
(RULE 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A)
OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. )
Filed by the registrant /X/
Filed by a party other than the registrant / /
Check the appropriate box:
/X/ Preliminary Proxy Statement
/ / Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)2))
/ / Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to Rule 14a-11(c) or Rule
14(a)-12
NUCO2 INC.
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(Name of Registrant as Specified in Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) filing Proxy Statement, if other than Registrant)
Payment of filing fee (check the appropriate box):
/ / $125 per Exchange Act Rule 0-11(c)(1)(ii), 14a-6(i)(1), or
14a- 6(i)(2) or Item 22(a)(2) of Schedule 14A.
/ / $500 per each party to the controversy pursuant to Exchange
Act Rule 14a-6(i)(3).
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4)
and 0-11.
(1) Title of each class of securities to which transaction
applies:
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(2) Aggregate number of securities to which transaction applies:
<PAGE>
- --------------------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (Set forth the
amount on which the filing fee is calculated and state how it
was determined):
- --------------------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
/ / Fee paid previously with preliminary materials.
/ / Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement number,
or the form or schedule and the date of its filing.
(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement no.:
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(3) Filing Party:
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(4) Date Filed:
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<PAGE>
NUCO2 INC.
2800 S.E. MARKET PLACE
STUART, FLORIDA 34997
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NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
DECEMBER 9, 1996
----------------------
To the Shareholders of NUCO2 INC.:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Shareholders of NUCO2
INC., a Florida corporation (the "Company"), will be held at Indian River
Plantation Resort, 555 N.E. Ocean Boulevard, Stuart, Florida 34996, on Monday,
December 9, 1996 at 10:00 a.m., local time, for the following purposes:
1. To elect six (6) members of the Board of Directors of the
Company to serve until the next annual meeting of shareholders
and until their successors have been duly elected and shall
have qualified;
2. To approve an amendment to the Company's Articles of
Incorporation to increase the number of authorized shares of
the Company's Common Stock from twenty million (20,000,000)
shares to thirty million (30,000,000) shares and to eliminate
designations for Preferred Stock no longer issued and
outstanding; and
3. To transact such other business as may properly come before
the Annual Meeting or any adjournments thereof.
Only shareholders of record at the close of business on November 1,
1996 are entitled to notice of, and to vote at, the Annual Meeting.
By Order of the Board of Directors
EDWARD M. SELLIAN
Chairman of the Board and Chief Executive Officer
Stuart, Florida
November 8, 1996
WHETHER OR NOT YOU EXPECT TO BE PRESENT AT THE ANNUAL
MEETING YOU ARE URGED TO FILL IN, DATE, SIGN AND RETURN THE
ENCLOSED PROXY IN THE ENVELOPE THAT IS PROVIDED,
WHICH REQUIRES NO POSTAGE IF MAILED IN THE
UNITED STATES.
<PAGE>
NUCO2 INC.
2800 S.E. MARKET PLACE
STUART, FLORIDA 34997
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PROXY STATEMENT FOR
ANNUAL MEETING OF SHAREHOLDERS
DECEMBER 9, 1996
-------------------------
INTRODUCTION
This Proxy Statement is furnished to the shareholders of NUCO2 INC., a
Florida corporation (the "Company"), in connection with the solicitation by the
Board of Directors of the Company of proxies ("Proxies") for the Annual Meeting
of Shareholders (the "Annual Meeting") to be held at Indian River Plantation
Resort, 555 N.E. Ocean Boulevard, Stuart, Florida 34996, on Monday, December 9,
1996 at 10:00 a.m., local time, or at any adjournments thereof. The approximate
date on which this Proxy Statement and the accompanying Proxy will be first sent
or given to shareholders is November 8, 1996.
RECORD DATE AND VOTING SECURITIES
The voting securities of the Company outstanding on November 1, 1996
consisted of 7,163,434 shares of common stock, $.001 par value ("Common Stock"),
entitling the holders thereof to one vote per share. Only shareholders of record
as at that date are entitled to notice of and to vote at the Annual Meeting or
any adjournments thereof. A majority of the outstanding shares of Common Stock
present in person or by proxy is required for a quorum.
PROXIES AND VOTING RIGHTS
Shares of Common Stock represented by Proxies, in the accompanying form
of Proxy, which are properly executed, duly returned and not revoked, will be
voted in accordance with the instructions contained therein. If no specification
is indicated on the Proxy, the shares represented thereby will be voted (i) for
the election as directors of the persons who have been nominated by the Board of
Directors, (ii) to approve an amendment to the Company's Articles of
Incorporation to increase the number of authorized shares of Common Stock from
twenty million (20,000,000) shares to thirty million (30,000,000) shares and to
eliminate designations for Preferred Stock no longer issued and outstanding and
(iii) for any other matter that may properly come before the Annual Meeting in
accordance with the judgment of the person or persons voting the Proxy.
The execution of a Proxy will in no way affect a shareholder's right to
attend the Annual Meeting and vote in person. Any Proxy executed and returned by
a shareholder may be revoked at any time thereafter if written notice of
revocation is given to the Secretary of the Company prior to the vote to be
taken at the Annual Meeting or by execution of a subsequent Proxy which is
presented to the Annual Meeting, or if the shareholder attends the Annual
Meeting and votes by ballot, except as to any matter or matters upon which a
vote shall have been cast pursuant to the authority conferred by such Proxy
prior to such revocation. The election of Directors requires a plurality of
votes cast at the Annual Meeting. In general, action to approve any other matter
requires a majority of votes cast on the matter. An abstention as to any matter
does not constitute a vote "for" or "against" and will be disregarded. "Broker
non-votes" (i.e., where a broker or nominee submits a Proxy specifically
indicating lack of discretionary authority to vote on a matter) will be treated
in the same manner as abstentions.
All expenses in connection with this solicitation will be borne by the
Company. It is expected that solicitations will be made primarily by mail, but
officers, directors, employees or representatives of the Company may also
solicit Proxies by telephone, telegraph or in person, without additional
compensation. The Company will,
<PAGE>
upon request, reimburse brokerage houses and persons holding shares in the names
of their nominees for their reasonable expenses in sending solicitation material
to their principals.
SECURITY OWNERSHIP
The following table sets forth information concerning ownership of the
Common Stock, as at November 1, 1996, by (i) each Director, (ii) each executive
officer, (iii) all Directors and executive officers as a group and (iv) each
person known to the Company to be the beneficial owner of more than five percent
of the Common Stock.
AMOUNT AND
NATURE OF
BENEFICIAL PERCENT OF
NAME AND ADDRESS(1) OWNERSHIP(2) CLASS(3)
- ------------------- ------------ --------
Edward M. Sellian ............................. 1,022,793(4) 14.3%
Joseph M. Criscuolo ........................... 93,920 1.3
Jean Houghton ................................. 4,928(5) *
Joann Sabatino ................................ 0 --
Robert L. Frome ............................... 29,222(6) *
John J. O'Neil ................................ 2,000(7) *
Edward F. O'Reilly ............................ 2,000(7) *
William B. Porter ............................. 2,000(7) *
All Directors and Executive Officers as a Group
(8 persons) .................................. 1,156,863(8) 16.1%
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* Less than 1%.
(1) Unless otherwise indicated, the address of each beneficial owner is c/o
the Company, 2800 S.E. Market Place, Stuart, Florida 34997.
(2) Beneficial ownership has been determined in accordance with Rule 13d-3
under the Securities Exchange Act of 1934 ("Rule 13d-3") and unless
otherwise indicated, represents shares for which the beneficial owner
has sole voting and investment power.
(3) The percentage of class is calculated in accordance with Rule 13d-3 and
attributes, for beneficial ownership purposes, any options or other
rights to subscribe for Common Stock which are exercisable within sixty
(60) days of November 1, 1996.
(4) Includes 10,000 shares held of record by Mr. Sellian's wife.
(5) Represents 4,928 shares issuable upon exercise of options.
(6) Includes 2,000 shares issuable upon exercise of options.
(7) Represents 2,000 shares issuable upon exercise of options.
(8) Includes 12,928 shares issuable upon exercise of options.
----------------
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<PAGE>
PROPOSAL NO. 1
ELECTION OF DIRECTORS
Directors of the Company hold office until the next annual meeting of
shareholders and until their successors are elected and qualified. Directors
shall be elected by a plurality of the votes cast, in person or by proxy, at the
Annual Meeting. If no contrary instructions are indicated, Proxies will be voted
for the election of Edward M. Sellian, Joseph M. Criscuolo, Robert L. Frome,
John J. O'Neil, Edward F. O'Reilly and William B. Porter, the six nominees of
the Board of Directors. All of the nominees are currently Directors of the
Company. The Company does not expect that any of the nominees will be
unavailable for election, but if that should occur before the Annual Meeting,
the Proxies will be voted in favor of the remaining nominees and may also be
voted for a substitute nominee or nominees selected by the Board of Directors.
The names of the nominees and certain information concerning them
attached set forth below:
NAME AGE POSITION(S)
- ---- --- -----------
Edward M. Sellian........ 54 Chairman of the Board and Chief Executive
Officer
Joseph M. Criscuolo...... 49 President, Chief Operating Officer and
Director
Robert L. Frome.......... 55 Director
John J. O'Neil........... 53 Director
Edward F. O'Reilly....... 57 Director
William B. Porter........ 64 Director
EDWARD M. SELLIAN: Chairman at the Board and Chief Executive officer
since 1991. From 1965 until May 1989, Mr. Sellian was the president of
Sodasystems, Inc. ("Sodasystems"), a supplier of fountain dispensing equipment,
bulk C02 systems and related products operating in the New York, New Jersey and
Connecticut market. Under Mr. Sellian. Sodasystems grew internally and through
20 acquisitions to become the largest supplier in the New York metropolitan
area. Sodasystems had sales of approximately $30 million annually and over
20,000 customer accounts at the time it was sold in May 1989 to The Coca-Cola
Bottling Company of New York, Inc. ("Coca-Cola"). Mr. Sellian continued to work
for Sodasystems after its purchase by Coca-Cola until December 1989. Mr. Sellian
provides overall executive oversight and is primarily responsible for setting
future strategy and implementing the acquisition program.
JOSEPH M. CRISCUOLO: President, Chief Operating Officer and Director
since 1990. Prior to joining the Company, Mr. Criscuolo was employed by
Sodasystems from 1980 until May 1989, joining Sodasystems as a route driver and
rising to vice president-operations. Mr. Criscuolo continued to work for
Sodasystems after its purchase by Coca-Cola until January 1990. He has
experience in warehousing, dispatching, general management and operations. Mr.
Criscuolo has overall responsibility for the day-to-day operations of the
Company. Mr. Criscuolo has a B.A. degree from Lehman College/City University of
New York.
ROBERT L. FROME: Director since December 1995. Mr. Frome has been
engaged in the practice of law for more than five years as a senior partner of
the law firm of Olshan Grundman Frome & Rosenzweig LLP. Mr. Frome is a director
of the following publicly-held corporation: Healthcare Services Group, Inc., the
nation's leading provider of housekeeping services to long-term care facilities.
Mr. Frome is chairman of the board of Daytop Village
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<PAGE>
Foundation, a not-for-profit drug treatment center. Mr. Frome has a B.S. degree
from New York University, a L.L.B. degree from Harvard University and a L.L.M.
degree from New York University.
JOHN J. O'NEIL: Director since December 1995. Mr. O'Neil is senior vice
president/food and beverage operations of Restaurant Associates, Inc., an
operator of over 125 full-service restaurants including Acapulco's
Mexican-themed restaurants, Charlie Brown's steakhouses and various
institutional dining facilities. He presently oversees the purchasing, quality
control and executive chef functions, and has been employed by Restaurant
Associates since 1968. Mr. O'Neil has a B.A. degree from St. John's University.
EDWARD F. O'REILLY: Director since December 1995. Mr. O'Reilly has been
involved in the beverage business for three decades and has diversified
experience in various sales, marketing and administrative positions including
chairman of the board and principal shareholder of the Coca-Cola Bottling
Company of Northern New England, chairman and chief executive officer of the
Coca-Cola Bottling Company of New York, president of The Royal Crown Cola
Company and executive vice president, sales and marketing for Joyce Beverages.
Since 1993 Mr. O'Reilly has been a consultant and entrepreneur in several
ventures in which he holds an equity interest. From 1989 to 1992, Mr. O'Reilly
was a managing partner of Millard-O'Reilly Enterprises, a private investment and
consulting firm serving leading soft drink companies. Mr. O'Reilly holds a B.A.
degree from Iona College.
WILLIAM B. PORTER: Director since December 1995. Since 1968, Mr. Porter
has been chairman of the board and chief executive officer of the George W.
Fowler Company, an industrial gas and welding equipment supplier. Mr. Porter
currently serves on the board of directors and is a member of the executive
committee of the Hospice of Martin/St. Lucie Counties (Florida). Mr. Porter has
a B.A. degree from the University of the South.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" EACH OF THE NOMINEES
BOARD MEETINGS AND COMMITTEES
The Board of Directors of the Company formally met on two occasions
during the fiscal year ended June 30, 1996. From time to time during such fiscal
year, the members of the Board of Directors acted by unanimous written consent.
Each of the directors attended both meetings of the Board of Directors except
William B. Porter who failed to attend one meeting. The Board of Directors has
authorized a Stock Option Committee, an Audit Committee and a Compensation
Committee. The Stock Option Committee members are William B. Porter, Edward F.
O'Reilly, John J. O'Neil and Robert L. Frome. The Audit Committee members are
Robert L. Frome, William B. Porter and Joseph M. Criscuolo. The Compensation
Committee members are William B. Porter, John J. O'Neil, and Edward M. Sellian.
The Stock Option Committee determines the term and the grant of stock
options in accordance with each of the Company's stock option plans, and
administers such plans. The Audit Committee reviews the Company's annual audit
and meets with the Company's independent accountants to review the Company's
internal controls and financial management practices. The Compensation Committee
reviews, analyzes and makes recommendations to the Board of Directors regarding
compensation of the key employees of the Company and prepares an annual report
on such policies. From time to time during the fiscal year ended June 30, 1996,
certain of the Committees of the Board of Directors acted by unanimous written
consent. The Company does not have a standing nominating committee or a
committee which serves nominating functions.
BOARD OF DIRECTORS COMPENSATION
Directors of the Company who are not executive officers do not receive
cash compensation for acting as a Director but are reimbursed for the reasonable
expenses of attending meetings. In addition, each non-employee director is
eligible to participate in the Company's Directors' Stock Option Plan.
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<PAGE>
OTHER EXECUTIVE OFFICERS
JEAN HOUGHTON: Vice President-Administration since 1990. Prior to
joining the Company, Ms. Houghton was employed by Sodasystems from 1984 to 1989
in office management. She is responsible for managing the back office operations
and support systems for the Company. Ms. Houghton was instrumental in the
design, development and implementation of the Company's data processing system
with its custom designed software package for customer billing and record
keeping.
JOANN SABATINO: Chief Financial Officer since October 1996. Prior to
joining the Company, Ms. Sabatino was a partner at Cooper, Selvin & Strassberg,
LLP, the Company's independent auditors. Ms. Sabatino commenced her employment
at Cooper, Selvin & Strassberg LLP in 1984, and has over 10 years of experience
serving beverage industry clients. Ms. Sabatino is a Certified Public Accountant
and a member of the American Institute of Certified Public Accountants. Ms.
Sabatino has a B.A. degree in Accounting from the State University of New York
at Oswego.
EXECUTIVE COMPENSATION
The following table sets forth the total compensation for the Company's
Chief Executive Officer during the fiscal years ended June 30, 1996, 1995 and
1994. No other executive officer's salary and bonus exceeded $100,000 for
services rendered to the Company during such years.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Fiscal Annual
Year Compensation(1)
Ended -------------------------
NAME AND PRINCIPAL POSITION June 30, SALARY BONUS
- --------------------------- -------- ------ -----
<S> <C> <C> <C>
Edward M. Sellian, Chief Executive Officer.......... 1996 $135,000 $25,000
1995 $110,000 $37,500
1994 $ 60,000 --
</TABLE>
- ----------
(1) The columns for "Other Annual Compensation" and "Long-term
Compensation" have been omitted as there is no compensation required to
be reported in such columns. The aggregate amount of perquisites and
other personal benefits did not exceed the lesser of $50,000 or 10% of
the total of salary and bonus. In addition, the Option Grants in Last
Fiscal Year Table and Aggregated Option Exercises in Last Fiscal Year
and Fiscal Year End Option Values Table have been omitted as Mr.
Sellian was not granted any options during the last fiscal year and
owns no options.
LONG-TERM INCENTIVE AND PENSION PLANS
The Company does not have any long-term incentive or defined benefit
pension plans.
-5-
<PAGE>
NONCOMPETITION AGREEMENT
Mr. Sellian does not have an employment agreement with the Company. The
Company has, however, entered into a noncompetition agreement with Mr. Sellian.
Mr. Sellian's agreement provides that for as long as he is Chairman of the Board
of the Company or owns at least 25% of the Company's outstanding Common Stock
and for two years thereafter, he shall not, without the prior written consent of
the Company, associate with any competing entity within the United States or
employ, or solicit the employment of any employee of the Company.
COMPLIANCE WITH SECTION 16(A) OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Securities Exchange Act of 1934, as amended,
requires the Company's officers and directors, and persons who own more than ten
percent of a registered class of the Company's equity securities, to file
reports of ownership and changes in ownership with the Securities and Exchange
Commission (the "Commission"). Officers, directors and greater than ten percent
shareholders are required by the Commission's regulations to furnish the Company
with copies of all Section 16(a) forms they file.
Based solely on review of copies of such forms furnished to the
Company, or written representations that no Form 5's were required, the Company
believes that during the year ended June 30, 1996, all Section 16(a) filing
requirements applicable to its officers, directors and greater than ten-percent
beneficial owners were complied with.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company leases its Stuart, Florida headquarters from Mr. Sellian
pursuant to a lease expiring on March 31, 2001 for $13,146 per month, the fair
market value for the premises determined by an independent real estate
appraisal. In April 1996, Mr. Sellian purchased this building from William B.
Porter, a director of the Company. The Company's lease for its former
headquarters, which terminated effective August 1, 1996, was also leased from
Mr. Sellian. Rent expense on the former headquarters totalled $68,900 in each of
the two fiscal years ended June 30, 1996. The Company also leases its Ft. Myers,
Florida and Stuart, Florida storage depots from Mr. Sellian and a corporation
owned by Mr. Sellian, respectively, pursuant to leases expiring on May 31, 1998
and February 28, 1996, respectively, for $795 and $318 per month, respectively.
Rent expense for these storage depots totalled $10,812 for the fiscal year ended
June 30, 1995 and $13,140 for the fiscal year ended June 30, 1996. The Company
leased a C414A Chancellor airplane for a minimum of 250 hours annually at a cost
of $300 per hour from a corporation controlled by Mr. Sellian. Rent expense for
the airplane totalled $19,282 for the fiscal year ended June 30, 1995 and
$77,305 for the fiscal year ended June 30, 1996. In addition, the Company leased
an IBM AS/400 computer from a corporation controlled by Mr. Sellian, for $2,000
per month through March 2000. Rent expense for the computer totalled $2,000 for
the fiscal year ended June 30, 1995 and $24,000 for the fiscal year ended June
30, 1996.
The Company was indebted to Mr. Sellian in the aggregate principal
amount of $830,592 pursuant to two Senior Subordinated Notes in the principal
amounts of $788,000 and $42,592, dated July 1, 1993 and May 6, 1994,
respectively. The Senior Subordinated Notes bore interest at the rate of 14% per
annum. Pursuant to the provisions of the Senior Subordinated Notes, $144,608 of
the principal amount of such Senior Subordinated Notes was converted into
226,205 shares of Common Stock effective with the closing of the Company's
initial public offering in December 1995 (the "IPO"). The balance of the
principal amount of such Senior Subordinated Notes, together with accrued
interest thereon, was repaid with a portion of the net proceeds of the IPO. Mr.
Sellian's purchase of such Senior Subordinated Notes and related warrants to
purchase shares of Common Stock was on the same terms and conditions as other
Senior Subordinated Notes and related warrants purchased by non-affiliated
third-parties of the Company simultaneously with Mr. Sellian's purchases.
The Company was also indebted to Mr. Sellian in the principal amount of
$725,000 pursuant to a Junior Subordinated Note dated August 30, 1994. The
Junior Subordinated Note bore interest at the rate of 14% per annum. The
principal amount of such Junior Subordinated Note, together with accrued
interest thereon, was repaid with a
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<PAGE>
portion of the net proceeds of the IPO. In consideration of Mr. Sellian's
guarantee in the amount of $500,000 to the Company's prior bank simultaneously
with the issuance of the Junior Subordinated Note, Mr. Sellian was issued a
warrant to purchase shares of Common Stock. Effective with the closing of the
IPO, such warrant was exercised at a price of $235,195 for an aggregate for
73,042 shares of Common Stock.
On November 7, 1995 Mr. Sellian loaned the Company $200,000. Such loan,
together with interest at 14% per annum, was repaid with a portion of the net
proceeds of the IPO.
On May 21, 1992, Mr. Sellian purchased 485 shares of Series A Preferred
Stock and 500 shares of Series B Preferred Stock for aggregate consideration of
$485,000 and $500,000, respectively. Mr. Sellian was the sole holder of all
outstanding shares of the Series A Preferred Stock and Series B Preferred Stock.
All outstanding shares of the Series A Preferred Stock and Series B Preferred
Stock were redeemed for $485,000 and approximately $226,000 of accrued
dividends, and $500, respectively, in connection with the IPO.
Mr. Robert L. Frome, a Director of the Company, is a member of the law
firm of Olshan Grundman Frome & Rosenzweig LLP, which law firm has been retained
by the Company during the last fiscal year. Fees received from the Company by
such firm during the last fiscal year did not exceed 5% of such firm's or the
Company's revenues.
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<PAGE>
PROPOSAL NO. 2
INCREASE AUTHORIZED COMMON STOCK
The Board of Directors recommends an amendment to the Company's
Articles of Incorporation to increase the number of authorized shares of Common
Stock from twenty million (20,000,000) shares to thirty million (30,000,000)
shares. In addition, the amendment to the Company's Articles of Incorporation
will eliminate designations for Preferred Stock no longer issued and
outstanding. The text of the proposed amendment is attached hereto as Exhibit A
and is incorporated herein by reference.
The Company is currently authorized to issue 20,000,000 shares of
Common Stock. As of November 1, 1996, the record date for the Annual Meeting,
7,163,434 shares of Common Stock were issued and outstanding, and approximately
an additional 410,000 shares of Common Stock were reserved for issuance upon
exercise of outstanding stock options and warrants and for options that may be
granted in the future under the Company's 1995 Stock Option Plan and the
Company's Directors' Stock Option Plan.
COMMON STOCK. The Board of Directors of the Company believes that it is
advisable and in the best interests of the Company to have available additional
authorized but unissued shares of Common Stock in an amount adequate to provide
for the future needs of the Company. The additional shares will be available for
issuance from time to time by the Company in the discretion of the Board of
Directors, normally without further shareholder action (except as may be
required for a particular transaction by applicable law, requirements of
regulatory agencies or by stock exchange rules), for any proper corporate
purpose including, among other things, future acquisitions of property or
securities of other corporations, stock dividends, stock splits, convertible
debt financing and equity financings. No shareholder of the Company would have
any preemptive rights regarding future issuance of any shares of Common Stock.
The Company has no present plans, understandings or agreements for the
issuance or use of the proposed additional shares of Common Stock. The Board of
Directors believes that if an increase in the authorized number of shares of
Common Stock were to be postponed until a specific need arose, the delay and
expense incident to obtaining the approval of the Company's shareholders at that
time could significantly impair the Company's ability to meet financing
requirements or other objectives.
Issuing additional shares of Common Stock may have the effect of
diluting the stock ownership of persons seeking to obtain control of the
Company. Although the Board of Directors has no present intention of doing so,
the Company's authorized but unissued Common Stock could be issued in one or
more transactions that would make more difficult or costly, and less likely, a
takeover of the Company. The proposed amendment to the Company's Articles of
Incorporation is not being recommended in response to any specific effort of
which the Company is aware to obtain control of the Company, nor is the Board of
Directors currently proposing to shareholders any anti-takeover measures.
DISSENTERS' RIGHTS
Pursuant to the Florida Business Corporation Law, the Company's
shareholders are not entitled to dissenters' rights of appraisal with respect to
the proposed amendment.
The affirmative vote of the holders of a majority of the shares of
Common Stock present, in person or by Proxy, is required for approval of the
proposal to amend the Company's Articles of Incorporation.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" APPROVAL OF
THE PROPOSAL TO AMEND THE COMPANY'S ARTICLES OF INCORPORATION
-------------------
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<PAGE>
SHAREHOLDER PROPOSALS
To the extent required by law, any shareholder proposal intended for
presentation at next year's annual shareholders' meeting must be received at the
Company's principal executive offices prior to July 11, 1997.
OTHER MATTERS
So far as it is known, there is no business other than that described
above to be presented for action by the shareholders at the forthcoming Annual
Meeting, but it is intended that Proxies will be voted upon any other matters
and proposals that may legally come before the Annual Meeting, or any
adjustments thereof, in accordance with the discretion of the persons named
therein.
The Company's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1996, including financial statements, has been mailed to shareholders
with this Proxy Statement. If, for any reason, you did not receive your copy of
the Annual Report, please advise the Company and a copy will be sent to you.
By Order of the Board of Directors
EDWARD M. SELLIAN
Chairman of the Board and Chief Executive Officer
Stuart, Florida
November 8, 1996
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<PAGE>
EXHIBIT A
ARTICLE III
The aggregate number of shares of all classes of capital stock which
this Corporation shall have authority to issue is Thirty Five Million
(35,000,000), consisting of (i) Thirty Million (30,000,000) shares of common
stock, par value $0.001 per share (the "Common Stock"), and (ii) Five Million
(5,000,000) shares of preferred stock, without par value but with a stated value
of $1,000 per share (the "Preferred Stock").
A. COMMON STOCK.
Section 1. VOTING. Except as otherwise required by law or as otherwise
provided in any Preferred Stock designation including paragraph B of this
Article III below, the holders of the Common Stock shall exclusively possess all
voting power and each share of Common Stock shall have one vote.
Section 2. DIVIDENDS. The holders of Common Stock shall be entitled to
receive dividends, when, as and if declared by the Board of Directors out of
funds legally available for such purpose and subject to any preferential
dividend rights of any then outstanding Preferred Stock.
Section 3. LIQUIDATION, DISSOLUTION, WINDING UP. After distribution in
full of the preferential amount, if any (fixed in accordance with the provisions
of paragraph B of this Article III), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary liquidation,
distribution or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to receive all the remaining
assets of the Corporation, tangible and intangible, of whatever kind available
for distribution to stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
B. PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series,
each of such series to have such terms as stated or expressed herein or in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided herein or by law. Different series
of Preferred Stock shall not be construed to constitute different classes of
shares for the purposes of voting by classes unless expressly provided for
herein or by law.
Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock in one or more series, and in
connection with the creation of any such series, by resolution or resolutions
providing for the issue of the shares thereof, to determine and fix such voting
powers, full or limited, or no voting powers, and such designations, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including without
limitation thereof, dividend rights, conversion rights, redemption privileges
and liquidation preferences, as shall be stated and expressed in such
resolutions, all to the full extent now or hereafter permitted by the Florida
Business Corporation Act. Without limiting the generality of the foregoing, the
resolutions providing for issuance of any series of Preferred Stock may provide
that such series shall be superior or rank equally or be junior to the Preferred
Stock of any other series to the extent permitted by law. Except as expressly
provided elsewhere in this Article III or the Florida Business Corporation Act,
no vote of the holders of the Preferred Stock or Common Stock shall be required
in connection with the designation or the issuance of any shares of any series
of the Preferred Stock authorized by and complying with the conditions of the
Articles of Incorporation, the right to have such vote being expressly waived by
all present and future holders of the capital stock of the Corporation.
-10-
<PAGE>
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF
NUCO2 INC.
PROXY -- ANNUAL MEETING OF SHAREHOLDERS, DECEMBER 9, 1996
The undersigned, a shareholder of NuCo2 Inc., a Florida corporation (the
"Company"), does hereby constitute and appoint Edward M. Sellian and Joseph M.
Criscuolo and each of them, the true and lawful attorneys and proxies with full
power of substitution, for and in the name, place and stead of the undersigned,
to vote all of the shares of Common Stock of the Company that the undersigned
would be entitled to vote if personally present at the 1996 Annual Meeting of
Shareholders of the Company to be held at Indian River Plantation Resort, 555
N.E. Ocean Boulevard, Stuart, Florida 34996 on December 9, 1996 at 10:00 a.m.,
local time, or at any adjournment or adjournments thereof.
The undersigned hereby instructs said proxies or their substitutes as set
forth below.
1. ELECTION OF DIRECTORS:
The election of Edward M. Sellian, Joseph M. Criscuolo, Robert L. Frome,
John J. O'Neil, Edward F. O'Reilly and William B. Porter.
/ / FOR / / TO WITHHOLD AUTHORITY TO VOTE FOR ALL NOMINEES TO WITHHOLD
AUTHORITY TO VOTE FOR ANY INDIVIDUAL NOMINEE(S), PRINT NAME(S) BELOW:
-------------------------------------------------
2. TO AMEND THE COMPANY'S ARTICLES OF INCORPORATION.
/ / FOR / / AGAINST / / ABSTAIN
3. DISCRETIONARY AUTHORITY.
(Continued on the reverse side)
<PAGE>
THIS PROXY WILL BE VOTED IN ACCORDANCE WITH ANY DIRECTIONS HEREINBEFORE
GIVEN. UNLESS OTHERWISE SPECIFIED, THIS PROXY WILL BE VOTED TO ELECT THE
NOMINEES AS DIRECTORS, TO APPROVE THE AMENDMENT OF THE COMPANY'S ARTICLES OF
INCORPORATION AND IN ACCORDANCE WITH THE DISCRETION OF THE PROXIES OR PROXY WITH
RESPECT TO ANY OTHER BUSINESS TRANSACTED AT THE ANNUAL MEETING.
The undersigned here revokes any proxy or proxies heretofore given and
ratifies and confirms all that the proxies appointed hereby, or any of the them,
or their substitutes, may lawfully do or cause to be done by virtue hereof.
PLEASE MARK, DATE, SIGN AND MAIL THIS PROXY
IN THE ENVELOPE PROVIDED FOR THIS PURPOSE.
NO POSTAGE IS REQUIRED IF MAILED IN THE
UNITED STATES.
, 1996
(L.S.)
--------------------------------------
(L.S.)
--------------------------------------
Signature(s)
NOTE: Please sign exactly as your name or
names appear hereon. When signing as
attorney, executor, administrator, trustee
or guardian, please indicate the capacity in
which signing. When signing as joint
tenants, all parties in the joint tenancy
must sign. When a proxy is given by a
corporation, it should be signed with full
corporate name by a duly authorized officer.
