As filed with the Securities and Exchange Commission on February 10, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NUCO2 INC.
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(Exact Name of Registrant as Specified in Its Charter)
Florida
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(State or Other Jurisdiction of Incorporation or Organization)
65-0180800
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(I.R.S. Employer Identification No.)
2800 SE Market Place, Stuart Florida 34997
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(Address of Principal Executive Offices) (Zip Code)
NUCO2 INC.
1995 STOCK OPTION PLAN
and
OPTION TO ADVISOR
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(Full Title of the Plan)
Eric M. Wechsler, Esq.
General Counsel
NuCo2 Inc.
2800 SE Market Place, Stuart, Florida 34997
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(Name and Address of Agent For Service)
(561) 221-1754
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(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum
Title Of Securities Amount To Be Offering Price Per Proposed Maximum Amount of
To Be Registered Registered Share Aggregate Offering Price Registration Fee
<S> <C> <C> <C> <C>
Common Shares, $.001 par
value per share 1,200,000 shares(1)(2) $11.92(2) $14,304,000(2) $3,777
Common Shares, $.001 par
value per share 1,500 shares $10.25 $15,375 $5
Total $3,782
</TABLE>
(1) Pursuant to Rule 416, the Registration Statement also covers such
indeterminate number of Common Shares as may become issuable as a
result of any future anti-dilution adjustment in accordance with the
terms of the 1995 Stock Option Plan (the "1995 Plan").
(2) Includes an aggregate of 431,480 shares with respect to which options
were granted under the 1995 Plan at an average exercise price of $8.08
per share. An additional 768,520 shares may be offered under the 1995
Plan. Pursuant to Rule 457(g) and (h), the offering price for these
additional shares is estimated solely for the purpose of determining
the registration fee and is based on $14.07, the average of the high
and low sale prices of the Common Shares as reported by The Nasdaq
Stock Market on February 7, 2000.
<PAGE>
EXPLANATORY NOTES
On June 24, 1996, NuCo2 Inc. (the "Company") filed a Registration
Statement on Form S-8 (No. 333- 06705) relating to, among other things, 350,000
Common Shares issuable under the 1995 Plan. On December 3, 1997 and December 2,
1999, the Company's shareholders approved increases of 500,000 and 700,000
Common Shares, respectively, in the 1995 Plan (the "Additional 1995 Plan
Shares"), from 350,000 Common Shares to a total of 1,550,000 Common Shares.
The Company has prepared this Registration Statement in accordance with
the requirements of Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), to register the Additional 1995 Plan Shares and 1,500 Common
Shares issuable pursuant to an advisor option.
This Registration Statement includes a Reoffer Prospectus prepared in
accordance with Part I of Form S-3 under the Securities Act. The Reoffer
Prospectus may be utilized for reofferings and resales of up to 1,200,000 Common
Shares acquired pursuant to the 1995 Plan by selling shareholders who may be
deemed an "affiliate" (as such term is defined in Rule 405 under the Securities
Act) of the Company.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The Company will provide documents containing the information specified
in Part I of Form S-8 to employees as specified by Rule 428(b)(1) under the
Securities Act. Pursuant to the instructions to Form S-8, the Company is not
required to file these documents either as part of the Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act.
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<PAGE>
PROSPECTUS
1,200,000 COMMON SHARES
NUCO2 INC.
This Prospectus relates to the reoffer and resale by certain selling
shareholders of common shares that may be issued by us to the selling
shareholders upon the exercise of stock options granted under our 1995 Stock
Option Plan. We previously registered the offer and sale of the shares to the
selling shareholders. This Prospectus also relates to certain underlying options
that have not as of this date been granted. If and when such options are granted
to persons required to use this Prospectus to reoffer and resell the shares
underlying such options, we will distribute a prospectus supplement. The shares
are being reoffered and resold for the account of the selling shareholders and
we will not receive any of the proceeds from the resale of the shares.
The selling shareholders have advised us that the resale of their
shares may be effected from time to time in one or more transactions on The
Nasdaq Stock Market, in negotiated transactions or otherwise at market prices
prevailing at the time of the sale or at prices otherwise negotiated. See "Plan
of Distribution." We will bear all expenses in connection with the preparation
of this Prospectus.
Our common shares are listed on The Nasdaq National Market under the
symbol "NUCO". On February 7, 2000, the last reported sale price on The Nasdaq
National Market for our common shares was $13.9375 per share.
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THIS INVESTMENT INVOLVES RISK. SEE "RISK FACTORS" BEGINNING ON
PAGE 6.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR
ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED
OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is February 10, 2000.
<PAGE>
TABLE OF CONTENTS
WHERE YOU CAN FIND MORE INFORMATION...........................................3
INCORPORATION BY REFERENCE....................................................3
ABOUT THIS PROSPECTUS.........................................................4
THE COMPANY...................................................................5
RISK FACTORS..................................................................6
USE OF PROCEEDS..............................................................14
SELLING SHAREHOLDERS.........................................................14
PLAN OF DISTRIBUTION.........................................................15
LEGAL MATTERS................................................................17
EXPERTS ....................................................................17
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<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy and information
statements and other information with the Securities and Exchange Commission
(the "SEC"). You may read and copy any documents we file at the SEC's Public
Reference Room at 450 Fifth Street, N.W., Washington, DC 20549. You may obtain
information on the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330. Our SEC filings are also available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also request
copies of such documents, upon payment of a duplicating fee, by writing to the
SEC at 450 Fifth Street, N.W., Washington, DC 20549. Our common shares are
listed on The Nasdaq National Market and such reports and other information may
also be inspected at the offices of Nasdaq at 1735 K Street, N.W., Washington,
DC 20006-1500. Additional information about us is available over the Internet at
our web site at HTTP://WWW.NUCO2.COM.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring to those documents. The information we incorporate by reference is
considered to be a part of this Prospectus and information that we file later
with the SEC will automatically update and replace this information. We
incorporate by reference the documents listed below and any future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"):
(1) Our Annual Report on Form 10-K for the fiscal year ended June 30,
1999;
(2) Our Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1999; and
(3) Our Registration Statement on Form 8-A dated December 11, 1995.
You may request a copy of these filings (excluding the exhibits to such
filings which we have not specifically incorporated by reference in such
filings) at no cost, by writing or telephoning us at the following address:
NuCo2 Inc.
2800 SE Market Place
Stuart, Florida 34997
Attention: General Counsel
(561) 221-1754
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<PAGE>
ABOUT THIS PROSPECTUS
This Prospectus is part of a Registration Statement we filed with the
SEC. You should rely only on the information provided or incorporated by
reference in this Prospectus or a related supplement. We have not authorized
anyone else to provide you with different information. The selling shareholders
will not make an offer of these shares in any state where the offer is not
permitted. You should not assume that the information in this Prospectus or any
supplement is accurate as of any other date than the date on the front of those
documents.
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made hereby, and, if given or made, such
information or representations must not be relied upon as having been authorized
by us or any selling shareholder. This Prospectus does not constitute an offer
to sell, or a solicitation of an offer to buy, the securities offered hereby to
any person in any state or other jurisdiction in which such offer or
solicitation is unlawful.
The delivery of this Prospectus at any time does not imply that
information contained herein is correct as of any time subsequent to its date.
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<PAGE>
THE COMPANY
We are the nation's leading supplier of bulk CO2 systems and bulk CO2
for carbonating and dispensing fountain beverages. A pioneer in the use of bulk
CO2 technology, we are the driving force in the transformation from high
pressure CO2, the customary method of carbonating and dispensing fountain
beverages, to bulk CO2. Bulk CO2 is a relatively new technology that has clear
advantages over high pressure CO2, such as improved beverage quality and product
yields, reduced employee handling and storage requirements, elimination of
downtime and product waste and enhanced safety.
We are headquartered in Stuart, Florida and employ the largest network
of sales, service and support professionals in the industry.
Our customers are many of the major national and regional restaurant
and convenience store chains, movie theater operators, theme parks, resorts and
sports venues.
Our principal executive offices are located at 2800 SE Market Place,
Stuart, Florida 34997. Our telephone number at such location is (561) 221-1754.
We have been a public company since December 1995.
The shares offered hereby were or will be purchased by the selling
shareholders upon the exercise of options granted to them under our 1995 Stock
Option Plan and will be sold for the accounts of the selling shareholders.
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<PAGE>
RISK FACTORS
The purchase of our common shares involves a high degree of risk. You
should carefully consider the following risk factors and the other information
in this Prospectus before deciding to invest in our common shares.
WE FACE UNCERTAINTY IN OUR ABILITY TO BECOME A PROFITABLE COMPANY.
We have incurred substantial losses since our inception in 1990. Our
net loss was $5.6 million for fiscal 1998, $8.9 million for fiscal 1999 and $2.4
million for the first quarter of fiscal 2000. Our losses to date have resulted
primarily from expenses incurred in building a sales and marketing organization,
adding administrative personnel and developing a national infrastructure to
support the rapid growth in the number of our installed base of bulk CO2
systems. The cost of this expansion and the significant depreciation expense of
our installed base of bulk CO2 systems have resulted in significant operating
losses to date and accumulated net losses of $19.5 million at September 30,
1999. We cannot be certain that we will install a sufficient number of our bulk
CO2 systems or obtain sufficient market acceptance to allow us to achieve or
sustain profitability.
WE HAVE SUBSTANTIAL INDEBTEDNESS.
As of September 30, 1999, we had outstanding indebtedness of $83.5
million, which included $44.25 million under our revolving credit facility and
$38.8 million of our 12% Senior Subordinated Promissory Notes due 2004 and 2005.
If we are unable to generate sufficient cash flow to service our indebtedness,
we will have to reduce or delay planned capital expenditures, sell assets,
restructure or refinance our indebtedness or seek additional equity capital. We
cannot assure you that any of these strategies can be affected on satisfactory
terms, if at all, particularly in light of our high levels of indebtedness. In
addition, the extent to which we continue to have substantial indebtedness could
have significant consequences, including:
- our ability to obtain additional financing in the future for
working capital, capital expenditures, product research and
development, acquisitions and other general corporate purposes
may be materially limited or impaired,
- a substantial portion of our cash flow from operations may
need to be dedicated to the payment of interest on our
indebtedness and therefore not available to finance our
business, and
- our high degree of indebtedness may make us more vulnerable to
economic downturns, limit our ability to withstand competitive
pressures or reduce our flexibility in responding to changing
business and economic conditions.
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<PAGE>
Also, our lenders require that we maintain certain financial and other
covenants. In the event that we fail to maintain such covenants, our lenders
could declare us in default and demand the repayment of our indebtedness to them
if such default were not cured or waived.
WE NEED ADDITIONAL FUNDING TO EXPAND OUR BUSINESS.
At September 30, 1999, we had negative working capital of $3.1 million.
Our business is capital intensive and we will continue to require substantial
funds in order to expand our business. Our ability to borrow additional funds
under our revolving credit facility is dependent upon the achievement by us of
increasing levels of gross margin and earnings before interest, taxes,
depreciation and amortization ("EBITDA"). If we do not achieve EBITDA levels
sufficient to borrow additional funds to purchase bulk CO2 systems to place into
service and we are unable to obtain additional debt or equity financing, we will
have to limit our growth.
OUR FUTURE OPERATING RESULTS REMAIN UNCERTAIN.
You should not consider growth rates in our revenue to be indicative of
growth rates in our operating results. In addition, you should not consider
prior growth rates in our revenue to be indicative of future growth rates in our
revenue. The timing and amount of future revenues will depend almost entirely on
our ability to obtain new agreements with potential customers for the
installation of bulk CO2 systems and utilization of our services. Our future
operating results will depend on many factors, including:
o the level of product and price competition,
o the ability of us to manage our growth,
o the ability to hire additional employees, and
o the ability to control costs.
OUR BUSINESS IS DEPENDENT ON CONTINUED MARKET ACCEPTANCE BY THE
FOOD AND BEVERAGE INDUSTRY.
We are substantially dependent on continued market acceptance of our
bulk CO2 systems by the food and beverage industry which accounts for
approximately 95% of our revenues. The retail beverage CO2 industry is mature,
with only limited growth in total demand for CO2 foreseen. Our ability to grow
is dependent upon the success of our marketing efforts in acquiring new
customers and their acceptance of bulk CO2 systems in replacing high pressure
CO2 cylinders. While the food and beverage industry to date has been receptive
to bulk CO2 systems, we cannot be certain that the operating results of our
installed base of bulk CO2 systems will continue to be favorable or that past
results will be indicative of future market acceptance of our service.
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<PAGE>
In addition, any recession experienced by the food and beverage
industry or any significant shift in consumer preferences away from carbonated
beverages to other types of beverages could harm our business, financial
condition, results of operations and ability to service our indebtedness.
WE LACK PRODUCT DIVERSITY.
Substantially all of our revenues are derived from the rental of bulk
CO2 systems installed at customers' sites, the sale of CO2 and high pressure
cylinder rental revenues. Unlike many of our competitors for whom bulk CO2 is a
secondary business, we have no material lines of business other than the leasing
of bulk CO2 systems and the sale of CO2 and we do not anticipate diversifying
into other product or service lines in the future. Accordingly, market
acceptance of our bulk CO2 systems is critical to our future success. We cannot
assure you that an acceptable level of demand will be achieved or sustained. If
sufficient demand for our bulk CO2 systems does not develop due to lack of
market acceptance, technological change, competition or other factors, our
business, financial condition and results of operations and ability to service
our indebtedness could be seriously harmed.
OUR MARKET IS HIGHLY COMPETITIVE.
The industry in which we operate is highly competitive. While we are
the first and only company to operate a national network of service locations
with over 97% of fountain beverage users in the Continental United States within
our current service area, we compete regionally with several direct competitors.
We cannot be certain that these competitors have not or will not substantially
increase their installed base of bulk CO2 systems and expand their service
nationwide. Because there are no major barriers to entry, we also face the risk
of a well capitalized competitor's entry into our existing or future markets. In
addition, we compete with numerous distributors of bulk and high pressure CO2,
including industrial gas and welding supply companies, specialty gas companies,
restaurant and grocery supply companies and fountain supply companies. These
suppliers vary widely in size and some of our competitors have significantly
greater financial, technical or marketing resources than we do. These
competitors may be able to undertake more extensive marketing campaigns, adopt
more aggressive pricing policies and make more attractive offers to customers.
Our competitors might succeed in developing technologies, products or services
that are superior, less costly or more widely used than those that have or are
being developed by us or that would render our technologies or products obsolete
or noncompetitive. In addition, certain competitors may have an advantage over
us with customers who prefer dealing with one company that can supply bulk CO2
as well as fountain syrup. We cannot be certain that we will be able to compete
effectively with current or future competitors. Competitive pressures could
seriously harm our business, financial condition and results of operations and
our ability to service our indebtedness.
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<PAGE>
OUR FAILURE TO MANAGE GROWTH COULD HARM OUR BUSINESS.
We have experienced rapid growth and intend to continue to expand our
operations aggressively. The growth in the size and scale of our business has
placed, and we expect it will continue to place, significant demands on our
operational, administrative and financial personnel and operating systems. Our
additional planned expansion may further strain management and other resources.
Our ability to manage growth effectively will depend on our ability to improve
our operating systems, to expand, train and manage our employee base and to
develop additional service capacity. We may be unable to effectively manage the
expansion of our operations, to implement and develop our systems, procedures or
controls, to adequately support our operations or to achieve and manage the
currently projected installations of bulk CO2 systems. If we are unable to
manage growth effectively, our business, financial condition and results of
operations and our ability to service our indebtedness could be seriously
harmed.
WE DEPEND UPON THIRD-PARTY SUPPLIERS.
We do not conduct manufacturing operations and depend, and will
continue to depend, on outside parties for the manufacture of bulk CO2 systems
and components. We intend to significantly expand our installed base of bulk CO2
systems, and such expansion may be limited by the manufacturing capacity of our
third-party manufacturers. Although we expect that our current manufacturers of
bulk CO2 systems will be able to produce sufficient units to meet projected
demand, manufacturers may not be able to meet our manufacturing needs in a
satisfactory and timely manner. If there is an unanticipated increase in demand
for bulk CO2 systems, we may be unable to meet such demand due to manufacturing
constraints. Although we have agreements with Chart Industries, Inc. and Taylor
Wharton Cryogenics (a division of Harsco Corporation), the two major
manufacturers of bulk CO2 systems, neither company has a long-term obligation to
continue to manufacture bulk CO2 systems and components. Should either
manufacturer cease manufacturing bulk CO2 systems, we would be required to
locate additional suppliers. We may be unable to locate alternate manufacturers
on a timely basis. A delay in the supply of bulk CO2 systems could cause
potential customers to delay their decision to purchase our services or to
choose not to purchase our services, which would result in delays in or loss of
revenues. In such event, our business, financial condition and results of
operations and our ability to service our indebtedness would be affected.
In addition, we purchase CO2 for resale to our customers. In May 1997,
we entered into a ten year exclusive requirements contract with The BOC Group,
Inc. ("BOC") for the purchase of bulk CO2. In the event that BOC is unable to
fulfill our requirements, we would have to locate additional suppliers. A delay
in locating additional suppliers or our inability to locate additional suppliers
would result in loss of revenues. In such event, our business, financial
condition and results of operations and our ability to service our indebtedness
would be affected.
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<PAGE>
WE DEPEND UPON KEY PERSONNEL AND NEED TO HIRE ADDITIONAL PERSONNEL.
Our performance is substantially dependent on the continued services of
our executive officers and key employees, all of whom we employ on an at-will
basis. Our long-term success will depend on our ability to recruit, retain and
motivate highly skilled personnel. Competition for such personnel is intense. We
have at times experienced difficulties in recruiting qualified personnel, and we
may experience difficulties in the future. The inability to attract and retain
necessary technical and managerial personnel could seriously harm our business,
financial condition and results of operations and our ability to service our
indebtedness. We do not maintain "key man" life insurance on any employee.
WE MUST KEEP PACE WITH TECHNOLOGICAL CHANGES TO REMAIN COMPETITIVE.
Our success depends in part on our ability to obtain new bulk CO2
customers by converting existing users of high pressure CO2 cylinders to bulk
CO2 systems and to keep pace with continuing changes in technology and consumer
preferences while remaining price competitive. Our failure to develop
technological improvements or to adapt our products and services to
technological change on a timely basis could, over time, seriously harm our
business, financial condition and results of operations and our ability to
service our indebtedness.
OUR COMMON SHARE PRICE HAS BEEN AND MAY CONTINUE TO BE VOLATILE.
Our common share price has fluctuated substantially since our initial
public offering in December 1995. The market price of our common shares could
decline from current levels or continue to fluctuate. The market price of our
common shares may be significantly affected by the following factors:
- announcements of technological innovations or new products or
services by us or our competitors,
- trends and fluctuations in the use of bulk CO2 systems,
- timing of bulk CO2 systems installations relative to financial
reporting periods,
- release of reports,
- operating results below expectations,
- changes in, or our failure to meet, financial estimates by
securities analysts,
- industry developments,
- market acceptance of bulk CO2 systems,
- economic and other external factors, and
- period-to-period fluctuations in our financial results.
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<PAGE>
In addition, the securities markets have from time to time experienced
significant price and volume fluctuations that are unrelated to the operating
performance of particular companies. These market fluctuations may also
materially and adversely affect the market price of our common shares.
OUR OPERATING RESULTS MAY FLUCTUATE DUE TO SEASONALITY.
Approximately 9% of our bulk CO2 customers are billed utilizing a
"rental plus per pound" program and approximately 15% of our bulk CO2 customers
own their own bulk CO2 systems and are billed by the pound for all CO2
delivered. We believe that, on a relative basis, customers purchasing bulk CO2
by the pound tend to consume less CO2 in the winter months and our sales to such
customers will be correspondingly lower in times of cold or inclement weather.
We cannot be certain, however, that such seasonal trends will continue.
Consequently, we are unable to predict revenues for any future quarter with any
significant degree of accuracy.
WE DO NOT INTEND TO PAY DIVIDENDS IN THE FORESEEABLE FUTURE.
We have never declared or paid any cash dividends on our capital stock.
We currently intend to retain any future earnings for funding growth and,
therefore, do not expect to pay any dividends in the foreseeable future. In
addition, the payment of cash dividends is restricted by financial covenants in
our loan agreements.
OUR OPERATING RESULTS ARE AFFECTED BY RISING INTEREST RATES.
The interest rate on our revolving credit facility fluctuates with
market interest rates resulting in greater interest costs in times of rising
interest rates. Consequently, our profitability is sensitive to changes in
interest rates.
OUR INSURANCE POLICIES MAY NOT COVER ALL OPERATING RISKS.
Our operations are subject to all of the operating hazards and risks
normally incidental to handling, storing and transporting CO2, which as a
compressed gas is classified as a hazardous material. We maintain insurance
policies in such amounts and with such coverages and deductibles as we believe
are reasonable and prudent. We cannot assure you that such insurance will be
adequate to protect us from all liabilities and expenses that may arise from
claims for personal and property damage arising in the ordinary course of
business or that such levels of insurance will be maintained or will be
available at economical prices. If a significant liability claim is brought
against us that is not covered by insurance, our business, financial condition,
and results of operations and ability to service our indebtedness could be
seriously harmed.
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<PAGE>
OUR BUSINESS IS SUBJECT TO EXTENSIVE GOVERNMENTAL REGULATION.
Our business is subject to federal and state laws and regulations
adopted for the protection of the environment, the health and safety of our
employees and users of our products and services. The transportation of bulk CO2
is subject to regulation by various federal, state and local agencies, including
the U.S. Department of Transportation. These regulatory authorities have broad
powers, and we are subject to regulatory and legislative changes that can affect
the economics of our industry by requiring changes in operating practices or
influencing the demand for, and the cost of providing services.
OUR OFFICERS AND DIRECTORS ARE ABLE TO EXERT SIGNIFICANT CONTROL
OVER MATTERS REQUIRING SHAREHOLDER APPROVAL.
Executive officers, directors and entities affiliated with them
beneficially own, in the aggregate, approximately 27% of our outstanding common
shares. These shareholders, if acting together, would be able to significantly
influence all matters requiring approval by our shareholders, including the
election of directors and the approval of significant corporate transactions,
such as mergers or other business combination transactions. This concentration
of ownership may also have the effect of delaying or preventing an acquisition
or change in control of our company, which could have a material adverse effect
on our common share price.
PROVISIONS OF OUR CHARTER AND FLORIDA LAW MAY PREVENT OR DELAY AN
ACQUSITION OF OUR COMPANY.
Our board of directors has the authority to issue up to 5,000,000
shares of preferred stock. Without any further vote or action on the part of the
shareholders, our board of directors will have the authority to determine the
price, rights, preferences, privileges and restrictions of the preferred stock.
Although the issuance of preferred stock will provide us with flexibility in
connection with possible acquisitions and other corporate purposes, the issuance
of preferred stock may make it more difficult for a third party to acquire a
majority of our outstanding voting stock. We currently have no plans to issue
preferred stock.
We are subject to several anti-takeover provisions that apply to a
public corporation organized under Florida law. These provisions provide that,
subject to certain exceptions, an "affiliated transaction" (certain transactions
between a corporation and a holder of more than 10% of its voting securities)
must be approved by a majority of disinterested directors or the holders of
two-thirds of the voting shares other than those beneficially owned by an
"interested shareholder," and that "control shares" (shares acquired in excess
of certain specified thresholds) acquired in specified control share
acquisitions have voting rights only to the extent conferred by resolution
approved by shareholders, excluding holders of shares defined as "interested
shares."
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<PAGE>
A Florida corporation may opt out of the Florida anti-takeover laws if
its articles of incorporation or, depending on the provision in question, its
bylaws so provide. We have not opted out of the provisions of the anti-takeover
laws. As such, these laws could prohibit or delay a merger or other takeover or
change of control and may discourage attempts by other companies to acquire us.
FUTURE SALES OF SHARES COULD AFFECT OUR STOCK PRICE.
If our shareholders sell substantial amounts of our common shares,
including shares issued upon exercise of outstanding options and warrants, in
the public market, the market price of our common shares could fall. These sales
also might make it more difficult for us to sell equity or equity-related
securities in the future at a time and price that we deem appropriate. We have
outstanding options under our 1995 Stock Option Plan and Directors' Stock Option
Plan to purchase an aggregate of 816,714 common shares at an average exercise
price of $9.26 per share and outstanding warrants to purchase an aggregate of
2,178,047 common shares at an average exercise price of $11.71 per share.
THIS PROSPECTUS AND DOCUMENTS INCORPORATED BY REFERENCE INTO
THIS PROSPECTUS CONTAIN FORWARD-LOOKING STATEMENTS; THESE
STATEMENTS ARE NOT GUARANTEES OF FUTURE PERFORMANCE AND ARE
SUBJECT TO CERTAIN RISKS, UNCERTAINTIES AND OTHER FACTORS, SOME
OF WHICH ARE BEYOND OUR CONTROL.
This Prospectus and documents incorporated by reference into this
Prospectus contain forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended, that are not historical facts but rather are
based on current expectations, estimates and projections about our business and
industry, our beliefs and assumptions. Words such as "anticipates", "expects",
"intends", "plans", "believes", "seeks", "estimates" and variations of these
words and similar expressions are intended to identify forward-looking
statements. These statements are not guarantees of future performance and are
subject to certain risks, uncertainties and other factors, some of which are
beyond our control, are difficult to predict and could cause actual results to
differ materially from those expressed or forecasted in the forward-looking
statements. These risks and uncertainties include those described in "Risk
Factors" and elsewhere in this Prospectus and documents incorporated by
reference into this Prospectus. You are cautioned not to place undue reliance on
these forward-looking statements, which reflect our management's view only as of
the date of this Prospectus or as of the date of any document incorporated by
reference into this Prospectus. We undertake no obligation to update these
statements or publicly release the results of any revisions to the
forward-looking statements that we may make to reflect events or circumstances
after the date of this Prospectus or the date of any document incorporated into
this Prospectus or to reflect the occurrence of unanticipated events.
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<PAGE>
USE OF PROCEEDS
This Prospectus relates to the reoffer and resale by certain selling
shareholders identified in this Prospectus of common shares that may be issued
by us to the selling shareholders upon the exercise of stock options granted
under our 1995 Stock Option Plan. See "Selling Shareholders." All net proceeds
from the sale of common shares will go to the shareholders who offer and sell
their shares. We will not receive any part of the proceeds from such sales. We
will, however, receive the exercise price of the options at the time of their
exercise. If all of the options are exercised, we will realize proceeds in the
amount of $3,165,821. Such proceeds will be contributed to working capital and
will be used for general corporate purposes.
SELLING SHAREHOLDERS
This Prospectus relates to the reoffer and resale of common shares
issued or that may be issued to the selling shareholders under our 1995 Stock
Option Plan.
The following table sets forth (i) the number of common shares
beneficially owned by each selling shareholder at February 7, 2000, (ii) the
number of common shares to be offered for resale by each selling shareholder
(i.e., the total number of common shares underlying options held by each selling
shareholder irrespective of whether such options are presently exercisable or
exercisable within 60 days of February 7, 2000) and (iii) the number and
percentage of common shares to be held by each selling shareholder after
completion of the offering.
<TABLE>
<CAPTION>
Number of Common
Number of Shares/Percentage of
Number of Common Common Shares Class to be Owned After
Shares Owned Prior to be Offered Completion of the
Name to the Offering(1) (2) Offering(1)
------ -------------------- -------- ------------
<S> <C> <C> <C>
Edward M. Sellian, Chief Executive 1,180,353 150,000 1,086,263/14.7%
Officer
Robert Ranieri,Chief Operating Officer 106,609 189,783 10,500/*
</TABLE>
- -----------------------------
* Less than 1%.
(1) A person is deemed to be the beneficial owner of voting securities that
can be acquired by such person within 60 days after the date of this
Prospectus upon the exercise of options. Unless otherwise noted, we
believe that all persons named in the above table have sole voting and
investment power with respect to all common shares beneficially owned
by them.
(2) Consists of common shares issuable upon the exercise of options both
currently and not
-14-
<PAGE>
currently exercisable.
We cannot assure you that the selling shareholders will exercise their
options to purchase our common shares.
The shares covered by this Prospectus may be sold from time to time so
long as this Prospectus remains in effect; provided, however, that the selling
shareholders are first required to contact our Corporate Secretary to confirm
that this Prospectus is in effect. We intend to distribute to each selling
shareholder a letter describing the procedures that the selling shareholder may
follow in order to use this Prospectus to sell the shares and under what
conditions this Prospectus may be used. The selling shareholders expect to sell
the shares at prices then attainable, less ordinary brokers' commission and
dealers' discounts as applicable.
PLAN OF DISTRIBUTION
This offering is self-underwritten; we have not and the selling
shareholders have not employed an underwriter for the sale of common shares by
the selling shareholders. We will bear all expenses in connection with the
preparation of this Prospectus. The selling shareholders will bear all expenses
associates with the sale of the common shares.
The selling shareholders may offer their common shares directly or
through pledgees, donees, transferees or other successors in interest in one or
more of the following transactions:
o On any stock exchange on which the common shares may be listed
at the time of sale
o In negotiated transactions
o In the over-the-counter market
o In a combination of any of the above transactions
The selling shareholders may offer their common shares at any of the
following prices:
o Fixed prices which may be changed
o Market prices prevailing at the time of sale
o Prices related to such prevailing market prices
o At negotiated prices
The selling shareholders may effect such transactions by selling shares
to or through broker-dealers, and all such broker-dealers may receive
compensation in the form of discounts, concessions, or commissions from the
selling shareholders and/or the purchasers of common shares for whom such
broker-dealers may act as agents or to whom they sell as principals, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions).
-15-
<PAGE>
Any broker-dealer acquiring common shares from the selling shareholders
may sell the shares either directly, in its normal market-making activities,
through or to other brokers on a principal or agency basis or to its customers.
Any such sales may be at prices then prevailing on Nasdaq or at prices or at
quotes related to such prevailing market prices or at negotiated prices to its
customers or a combination of such methods. The selling shareholders and any
broker-dealers that act in connection with the sale of the common shares
pursuant to this Prospectus might be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act; any commissions received by them
and any profit on the resale of shares as principal might be deemed to be
underwriting discounts and commissions under the Securities Act. Any such
commissions, as well as other expenses incurred by the selling shareholders and
applicable transfer taxes, are payable by the selling shareholders.
The selling shareholders reserve the right to accept, and together with
any agent of the selling shareholder, to reject in whole or in part any proposed
purchase of the common shares. The selling shareholders will pay any sales
commissions or other seller's compensation applicable to such transactions.
We have not registered or qualified offers and sales of the common
shares under the laws of any country, other than the United States. To comply
with certain states' securities laws, if applicable, the selling shareholders
will offer and sell their common shares in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
selling shareholders may not offer or sell common shares unless we have
registered or qualified such shares for sale in such states or we have complied
with an available exemption from registration or qualification.
The selling shareholders have represented to us that any purchase or
sale of common shares by them will comply with Regulation M promulgated under
the Exchange Act. In general, Rule 102 under Regulation M prohibits any person
connected with a distribution of our common shares (a "Distribution") from
directly or indirectly bidding for, or purchasing for any account in which he or
she has a beneficial interest, any of our common shares or any right to purchase
our common shares, for a period of one business day before and after completion
of his or her participation in the distribution (we refer to that time period as
the "Distribution Period").
During the Distribution Period, Rule 104 under Regulation M prohibits
the selling shareholders and any other persons engaged in the Distribution from
engaging in any stabilizing bid or purchasing our common shares except for the
purpose of preventing or retarding a decline in the open market price of our
common shares. No such person may effect any stabilizing transaction to
facilitate any offering at the market. Inasmuch as the selling shareholders will
be reoffering and reselling our common shares at the market, Rule 104 prohibits
them from effecting any stabilizing transaction in contravention of Rule 104
with respect to our common shares.
-16-
<PAGE>
There can be no assurance that the selling shareholders will sell any
or all of the shares offered by them pursuant to this Prospectus or otherwise.
LEGAL MATTERS
Certain legal matters in connection with the issuance of the common
shares offered hereby have been passed upon by Olshan Grundman Frome Rosenzweig
& Wolosky LLP, 505 Park Avenue, New York, New York 10022. Certain members of
such firm own an aggregate of 152,576 common shares. Robert L. Frome, a member
of such firm, is one of our directors.
EXPERTS
The consolidated financial statements of NuCo2 Inc. incorporated in
this Prospectus by reference to our Annual Report on Form 10-K for the fiscal
year ended June 30, 1999 have been so incorporated in reliance on the report of
Margolin, Winer & Evens LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
-17-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by NuCo2 Inc. (the "Company") with the
Securities and Exchange Commission are incorporated herein by reference and made
a part hereof:
(a) Annual Report of the Company on Form 10-K for the fiscal year ended
June 30, 1999;
(b) Quarterly Report of the Company on Form 10-Q for the fiscal quarter
ended September 30, 1999; and
(c) The description of the Common Shares in the Company's Registration
Statement on Form 8-A dated December 11, 1995.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interest of Named Experts and Counsel
Certain legal matters in connection with the issuance of the Shares
offered hereby have been passed upon for the Company by Olshan Grundman Frome
Rosenzweig & Wolosky LLP, 505 Park Avenue, New York, New York 10022. Certain
members of such firm own an aggregate of 152,576 Common Shares. Robert L. Frome,
a member of such firm, is a director of the Company.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers
Except as hereinafter set forth, there is no statute, charter
provision, by-law, contract or other arrangement under which any controlling
person, director or officer of the Company is insured or indemnified in any
manner against liability which he may incur in his capacity as such.
The Articles of Incorporation and Bylaws of the Company provide that
the Company may indemnify to the fullest extent permitted by Florida law any
person whom it may indemnify thereunder, including directors, officers,
employees and agents of the Company.
The Company has obtained a directors' and officers' insurance and
company reimbursement policy in the amount of $5,000,000. The policy insures
directors and officers against unindemnified loss arising from certain wrongful
acts in their capacities and would reimburse the Company for such loss for which
the Company has lawfully indemnified the directors and officers.
See the last paragraph of Item 9 below for information regarding the
position of the Securities and Exchange Commission with respect to the effect of
any indemnification for liabilities arising under the Securities Act.
Section 607.0850 of the Florida Business Corporation Act.
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS.
(1) A corporation shall have power to indemnify any person who was or
is a party to any proceeding (other than an action by, or in the right of, the
corporation), by reason of the fact that he is or was a director, officer,
employee, or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against liability
incurred in connection with such proceeding, including any appeal thereof, if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any proceeding by judgment, order, settlement,
or conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in, or not opposed to, the best
interests of the corporation or, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(2) A corporation shall have power to indemnify any person, who was or
is a party to any proceeding by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses and amounts paid in settlement not exceeding, in the judgment of the
board of directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the
II-2
<PAGE>
defense or settlement of such proceeding, including any appeal thereof. Such
indemnification shall be authorized if such person acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the corporation, except that no indemnification shall be made under this
subsection in respect of any claim, issue, or matter as to which such person
shall have been adjudged to be liable unless, and only to the extent that, the
court in which such proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the adjudication of
liability but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper.
(3) To the extent that a director, officer, employee, or agent of a
corporation has been successful on the merits or otherwise in defense of any
proceeding referred to in subsection (1) or subsection (2), or in defense of any
claim, issue, or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith.
(4) Any indemnification under subsection (1) or subsection (2), unless
pursuant to a determination by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee, or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in subsection (1) or
subsection (2). Such determination shall be made:
(a) By the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such proceeding;
(b) If such a quorum is not obtainable or, even if obtainable,
by majority vote of a committee duly designated by the board of
directors (in which directors who are parties may participate)
consisting solely of two or more directors not at the time parties to
the proceeding;
(c) By independent legal counsel:
1. Selected by the board of directors prescribed in
paragraph (a) or the committee prescribed in paragraph (b); or
2. If a quorum of the directors cannot be obtained for
paragraph (a) and the committee cannot be designated under
paragraph (b), selected by majority vote of the full board of
directors (in which directors who are parties may
participate); or
(d) By the shareholders by a majority vote of a quorum
consisting of shareholders who were not parties to such proceeding or,
if no such quorum is obtainable, by a majority vote of shareholders who
were not parties to such proceeding.
II-3
<PAGE>
(5) Evaluation of the reasonableness of expenses and authorization of
indemnification shall be made in the same manner as the determination that
indemnification is permissible. However, if the determination of permissibility
is made by independent legal counsel, persons specified by paragraph (4)(c)
shall evaluate the reasonableness of expenses and may authorize indemnification.
(6) Expenses incurred by an officer or director in defending a civil or
criminal proceeding may be paid by the corporation in advance of the final
disposition of such proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if he is ultimately found not to
be entitled to indemnification by the corporation pursuant to this section.
Expenses incurred by other employees and agents may be paid in advance upon such
terms or conditions that the board of directors deems appropriate.
(7) The indemnification and advancement of expenses provided pursuant
to this section are not exclusive, and a corporation may make any other or
further indemnification or advancement of expenses of any of its directors,
officers, employees, or agents, under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
However, indemnification or advancement of expenses shall not be made to or on
behalf of any director, officer, employee, or agent if a judgment or other final
adjudication establishes that his actions, or omissions to act, were material to
the cause of action so adjudicated and constitute:
(a) A violation of the criminal law, unless the director,
officer, employee, or agent had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was
unlawful;
(b) A transaction from which the director, officer, employee,
or agent derived an improper personal benefit;
(c) In the case of a director, a circumstance under which the
liability provisions of s. 607.0834 are applicable; or
(d) Willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or
in the right of a shareholder.
(8) Indemnification and advancement of expenses as provided in this
section shall continue as, unless otherwise provided when authorized or
ratified, to a person who has ceased to be a director, officer, employee, or
agent and shall inure to the benefit of the heirs, executors, and administrators
of such a person, unless otherwise provided when authorized or ratified.
(9) Unless the corporation's articles of incorporation provide
otherwise, notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary determination of
II-4
<PAGE>
the board or of the shareholders in the specific case, a director, officer,
employee, or agent of the corporation who is or was a party to a proceeding may
apply for indemnification or advancement of expenses, or both to the court
conducting the proceeding, to the circuit court, or to another court of
competent jurisdiction. On receipt of an application, the court, after giving
any notice that it considers necessary, may order indemnification and
advancement of expenses, including expenses incurred in seeking court-ordered
indemnification or advancement of expenses, if it determines that:
(a) The director, officer, employee, or agent is entitled to
mandatory indemnification under subsection (3), in which case the court
shall also order the corporation to pay the director reasonable
expenses incurred in obtaining court-ordered indemnification or
advancement of expenses;
(b) The director, officer, employee, or agent is entitled to
indemnification or advancement of expenses, or both, by virtue of the
exercise by the corporation of its power pursuant to subsection (7); or
(c) The director, officer, employee, or agent is fairly and
reasonably entitled to indemnification or advancement of expenses, or
both, in view of all the relevant circumstances, regardless of whether
such person met the standard of conduct set forth in subsection (1)
subsection (2), or subsection (7).
(10) For purposes of this section, the term "corporation" includes, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger, so that
any person who is or was a director, officer, employee, or agent of a
constituent corporation, or is or was serving at the request of a constituent
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, is in the same position
under this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(11) For purposes of this section:
(a) The term "other enterprises" includes employee benefit plans;
(b) The term "expenses" includes counsel fees, including those for
appeal;
(c) The term "liability" includes obligations to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to any employee benefit plan), and expenses actually and
reasonably incurred with respect to a proceeding;
(d) The term "proceeding" includes any threatened, pending, or
completed action, suit, or other type of proceeding, whether civil,
criminal, administrative, or
II-5
<PAGE>
investigative and whether formal or informal;
(e) The term "agent" includes a volunteer;
(f) The term "serving at the request of the corporation" includes
any service as a director, officer, employee, or agent of the
corporation that imposes duties on such persons, including duties
relating to an employee benefit plan and its participants or
beneficiaries; and
(g) The term "not opposed to the best interest of the corporation"
describes the actions of a person who acts in good faith and in a
manner he reasonably believes to be in the best interests of the
participants and beneficiaries of an employee benefit plan.
(12) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee, or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against any liability asserted against him
and incurred by him in any such capacity or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
The Company has also agreed to indemnify each director and executive
officer pursuant to an Indemnification Agreement with each such director and
executive officer from and against any and all expenses, losses, claims, damages
and liability incurred by such director or executive officer for or as a result
of action taken or not taken while such director or executive officer was acting
in his capacity as a director, officer, employee or agent of the Company, to the
fullest extent permitted under Florida law.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit Index
4 1995 Stock Option Plan.
5 Opinion of Olshan Grundman Frome Rosenzweig & Wolosky LLP.
23.1 Consent of Olshan Grundman Frome Rosenzweig & Wolosky LLP
(included in its opinion filed as Exhibit 5).
II-6
<PAGE>
23.2 Consent of Margolin, Winer & Evens, LLP, independent auditors.
24 Powers of Attorney (included on the signature page to this
Registration Statement).
Item 9. Undertakings
The undersigned registrant hereby undertakes:
a. To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
b. That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
c. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
d. That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
e. To deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, the latest annual report,
to security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Exchange Act of 1934; and where interim financial
information required to be presented by Article 3 of Regulation S-X is not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities
II-7
<PAGE>
(other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-8
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Stuart, State of Florida on this 10th day of February,
2000.
NUCO2 INC.
------------------------------------------------
(Registrant)
By: /s/ Edward M. Sellian
--------------------------------------------
Edward M. Sellian, Chief Executive Officer
POWER OF ATTORNEYS AND SIGNATORIES
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated. Each of the undersigned officers and
directors of NuCo2 Inc. hereby constitutes and appoints Edward M. Sellian and
Eric M. Wechsler and each of them singly, as true and lawful attorneys-in-fact
and agents with full power of substitution and resubstitution, for him in his
name in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and to prepare any and all exhibits thereto,
and other documents in connection therewith, and to make any applicable state
securities law or blue sky filings, granting unto said attorneys-in-fact and
agents, full power and authority to do and perform each and every act and thing
requisite or necessary to be done to enable NuCo2 Inc. to comply with the
provisions of the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Signature Title Date
/s/ Edward M. Sellian Chairman of the Board and Chief
- --------------------------- Executive Officer (Principal February 10, 2000
(Edward M. Sellian) Executive Officer)
/s/ Robert Ranieri Executive Vice President, Chief February 10, 2000
- --------------------------- Operating Officer and Director
(Robert Ranieri)
/s/ Joann Sabatino Chief Financial Officer February 10, 2000
- -------------------------- (Principal Financial Officer
(Joann Sabatino) and Principal Accounting Officer)
II-9
<PAGE>
/s/ Craig L. Burr Director February 10, 2000
- --------------------------
(Craig L. Burr)
/s/ Robert L. Frome Director February 10, 2000
- --------------------------
(Robert L. Frome)
/s/ John A. Kerney Director February 10, 2000
- --------------------------
(John A. Kerney)
/s/ Daniel Raynor Director February 10, 2000
- --------------------------
(Daniel Raynor)
/s/ Richard D. Waters, Jr. Director February 10, 2000
- --------------------------
(Richard D. Waters, Jr.)
The 1995 Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Stuart, State of Florida
on February 10, 2000.
NUCO2 INC.
1995 STOCK OPTION PLAN
----------------------------------------------
By: /s/ John A. Kerney
-----------------------------------------
John A. Kerney,
Member of Stock Option Committee
By: /s/ Daniel Raynor
-----------------------------------------
Daniel Raynor,
Member of Stock Option Committee
II-10
Exhibit 4
NUCO2 INC.
1995 STOCK OPTION PLAN
1. Purposes
The purpose of the Plan is to provide additional incentive to the
officers and employees of the Company who are primarily responsible for the
management and growth of the Company, or otherwise materially contribute to the
conduct and direction of its business, operations and affairs, in order to
strengthen their desire to remain in the employ of the Company and to stimulate
their efforts on behalf of the Company, and to retain and attract to the employ
of the Company persons of competence. Each option granted pursuant to the Plan
shall be designated at the time of grant as either an "incentive stock option"
or as a "non-qualified stock option." The terms and conditions of the Plan shall
be set forth or incorporated by reference in the option agreements evidencing
the options.
2. Definitions
For the purposes of the Plan, unless the context otherwise requires,
the following definitions shall be applicable:
(a) "Board" or "Board of Directors" means the Company's Board of
Directors.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Committee" means the Stock Option Committee composed of two or
more members of the Board of Directors, and who shall be responsible for
administering the Plan. Each of the members of the Committee shall be a
Disinterested Person.
(d) "Company" means NuCo2 Inc.
(e) "Disinterested Person" means a disinterested person, as defined
in Rule 16b-3 under the Exchange Act.
(f) "Employee" means an employee of the Company or of a Subsidiary
(including a director or officer of the Company or a Subsidiary who is also an
employee).
(g) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(h) "Fair Market Value" of the Shares means the closing price of
publicly traded Shares on the national securities exchange on which the Shares
are listed (if the Shares are so listed) or on the Nasdaq National Market (if
the Shares are regularly quoted on the Nasdaq National Market), or, if not so
listed or regularly quoted, the mean between the closing bid and asked prices of
publicly traded Shares in the over-the-counter market, or, if such bid and asked
prices shall not be available, as reported by any nationally recognized
quotation service selected
<PAGE>
by the Company, or as determined by the Committee in a manner consistent with
the provisions of the Code.
(i) "ISO" means an option intended to qualify as an incentive stock
option under Section 422 of the Code.
(j) "NQO" means an option that does not qualify as an ISO.
(k) "Plan" means the 1995 Stock Option Plan of the Company.
(l) "Securities Act" means the Securities Act of 1933, as amended.
(m) "Shares" means shares of the Company's Common Stock, $.001 par
value, including authorized but unissued shares and shares that have been
previously issued and reacquired by the Company.
(n) "Subsidiary" of the Company means and includes a "Subsidiary
Corporation," as that term is defined in Section 425(f) of the Code.
3. Administration
Subject to the express provisions of the Plan, the Committee shall
have authority to interpret and construe the Plan, to prescribe, amend and
rescind rules and regulations relating to it, to determine the terms and
conditions of the respective option agreements (which need not be identical) and
to make all other determinations necessary or advisable for the administration
of the Plan. Subject to the express provisions of the Plan, the Committee, in
its sole discretion, shall from time to time determine the persons from among
those eligible under the Plan to whom, and the time or times at which, options
shall be granted, the number of Shares to be subject to each option, whether an
option shall be designated an ISO or an NQO and the manner in and price at which
such option may be exercised. In making such determination, the Committee may
take into account the nature and period of service rendered by the respective
optionees, their level of compensation, their past, present and potential
contributions to the Company and such other factors as the Committee shall in
its discretion deem relevant. The determination of the Committee with respect to
any matter referred to in this Section 3 shall be conclusive.
4. Eligibility for Participation
Any Employee shall be eligible to receive ISOs or NQOs granted under
the Plan.
5. Limitation on Shares Subject to the Plan
Subject to adjustment as hereinafter provided, no more than
1,550,000 Shares may be issued pursuant to the exercise of options granted under
the Plan. If any option shall expire or terminate for any reason, without having
been exercised in full, the unpurchased Shares subject thereto shall again be
available for the purposes of the Plan.
<PAGE>
6. Terms and Conditions of Options
Each option granted under the Plan shall be subject to the following
terms and conditions:
(a) Except as provided in Subsection 6(j), the option price per
Share shall be determined by the Committee, but (i) as to an ISO shall not be
less than 100% of the Fair Market Value of a Share on the date such ISO option
is granted; and (ii) as to an NQO, shall not be less than 75% of the Fair Market
Value of a Share on the date such NQO is granted.
(b) The Committee shall, in its discretion, fix the term of each
option, provided that the maximum length of the term of each option granted
hereunder shall be 10 years and provided further than the provisions of
Subsection 6(j) hereof shall be applicable to the grant of ISOs to Employees
therein identified.
(c) If a holder of an option dies while he is employed by the
Company or a Subsidiary, such option may, to the extent that the holder of the
option was entitled to exercise such option on the date of his death, be
exercised during a period after his death fixed by the Committee, in its
discretion, at the time such option is granted, but in no event to exceed one
year, by his personal representative or representatives or by the person or
persons to whom the holder's rights under the option shall pass by will or by
the applicable laws of descent and distribution or by a qualified domestic
relations order; provided, however, that no option granted under the Plan may be
exercised to any extent by anyone after its expiration.
(d) In the event that a holder of an option shall voluntarily retire
or quit his employment without the written consent of the Company or a
Subsidiary or if the Company shall terminate the employment of a holder of an
option for cause, the options held by such holder shall forthwith terminate. If
a holder of an option shall voluntarily retire or quit his employment with the
written consent of the Company or a Subsidiary, or if the employment of such
holder shall have been terminated by the Company or a Subsidiary for reasons
other than cause, such holder may (unless his option shall have previously
expired pursuant to the provisions hereof) exercise his option at any time prior
to the first to occur of the expiration of the original option period or the
expiration of a period after termination of employment fixed by the Committee,
in its discretion, at the time the option is granted, but in no event to exceed
three months, to the extent of the number of Shares subject to such option which
were purchasable by him on the date of termination of his employment. Options
granted under the Plan shall not be affected by any change of employment so long
as the holder thereof continues to be an Employee.
(e) Anything to the contrary contained herein or in any option
agreement executed and delivered hereunder, no option shall be exercisable
unless and until the Plan has been approved by stockholders of the Company in
accordance with Section 13 hereof.
(f) Each option shall be nonassignable and nontransferable by the
option holder otherwise than by will or by the laws of descent and distribution
and shall be exercisable during the lifetime of the option holder solely by him.
<PAGE>
(g) An option holder desiring to exercise an option shall exercise
such option by delivering to the Company written notice of such exercise,
specifying the number of Shares to be purchased, together with payment of the
purchase price therefor; provided, however that no option may be exercised in
part with respect to fewer than 100 Shares, except to purchase the remaining
Shares purchasable under such option. Payment shall be made as follows: (i) in
United States dollars by cash or by check, certified check, bank draft or money
order payable to the order of the Company; (ii) at the discretion of the
Committee, by delivering to the Company Shares already owned by the option
holder and having a Fair Market Value on the date of exercise equal to the
exercise price, or a combination of such Shares and cash; or (iii) by any other
proper method specifically approved by the Committee.
(h) In order to assist an option holder with the acquisition of
Shares pursuant to the exercise of an option granted under the Plan, the
Committee may, in its discretion and subject to the requirements of applicable
statutes, rules and regulations, whenever, in its judgment, such assistance may
reasonably be expected to benefit the Company, authorize, either at the time of
the grant of the option or thereafter (i) the extension of a loan to the option
holder by the Company, (ii) the payment by the option holder of the purchase
price of the Shares in installments, or (iii) the guaranty by the Company of a
loan obtained by the option holder from a third party. The Committee shall
determine the terms of any such loan, installment payment arrangement or
guaranty, including the interest rate and other terms of repayment thereof.
Loans, installment payment arrangements and guaranties may be authorized with or
without security and the maximum amount thereof shall be the option price for
the Shares being acquired plus related interest payments.
(i) The aggregate Fair Market Value (determined at the time an ISO
is granted) of the Shares as to which an Employee may first exercise ISOs in any
one calendar year under all incentive stock option plans of the Company and its
Subsidiaries may not exceed $100,000.
(j) An ISO may be granted to an Employee owning, or who is
considered as owning by applying the rules of ownership set forth in Section
425(d) of the Code, over 10% of the total combined voting power of all classes
of stock of the Company or any Subsidiary if the option price of such ISO equals
or exceeds 110% of the Fair Market Value of a Share on the date the option is
granted and such ISO shall expire not more than five years after the date of
grant.
<PAGE>
7. Adjustments Upon Changes in Capitalization
(a) Subject to any required regulatory approval, new option rights
may be substituted for the option rights granted under the Plan, or the
Company's duties as to options outstanding under the Plan may be assumed, by a
corporation other than the Company, or by a parent or subsidiary of the Company
or such corporation, in connection with any merger, consolidation, acquisition,
separation, reorganization, liquidation or like occurrence in which the Company
is involved. Notwithstanding the foregoing or the provisions of Subsection 7(b)
hereof, in the event such corporation, or parent or subsidiary of the Company or
such corporation, does not substitute new option rights for, and substantially
equivalent to, the option rights granted hereunder, or assume the option rights
granted hereunder, the option rights granted hereunder shall terminate and
thereupon become null and void (i) upon dissolution or liquidation of the
Company, or similar occurrence, (ii) upon any merger, consolidation,
acquisition, separation, reorganization, or similar occurrence, in which the
Company will not be a surviving entity or (iii) upon a transfer of substantially
all of the assets of the Company or more than 80% of the outstanding Shares;
provided, however, that each option holder shall have the right immediately
prior to or concurrently with such dissolution, liquidation, merger,
consolidation, acquisition, separation, reorganization or similar occurrence, to
exercise any unexpired option rights granted hereunder whether or not then
exercisable. If the exercise of the foregoing right by the holder of an ISO
would be deemed to result in a violation of the provisions of Subsection 6(i) of
the Plan, then, without further act on the part of the Committee or the option
holder, such ISO shall be deemed an NQO to the extent necessary to avoid any
such violation.
(b) The existence of outstanding options shall not affect in any way
the right or power of the Company or its stockholders to make or authorize any
or all adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business, or any merger or consolidation of
the Company, or any issuance of Common Stock or subscription rights or any
merger or consolidation of the Company, or any issuance of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Shares or the
rights thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise; provided,
however, that if the outstanding Shares shall at any time be changed or
exchanged by declaration of a stock dividend, stock split, combination of shares
or recapitalization, the number and kind of Shares subject to the Plan or
subject to any options theretofore granted, and the option prices, shall be
appropriately and equitably adjusted so as to maintain the proportionate number
of Shares without changing the aggregate option price.
(c) Adjustments under this Section 7 shall be made by the Committee
whose determination as to what adjustments, if any, shall be made, and the
extent thereof, shall be final.
<PAGE>
8. Privileges of Stock Ownership
No option holder shall be entitled to the privileges of stock
ownership as to any Shares not actually issued and delivered to him.
9. Securities Regulation
(a) Each option shall be subject to the requirement that if at any
time the Board of Directors or Committee shall in its discretion determine that
the listing, registration or qualification of the Shares subject to such option
upon any securities exchange or under any Federal or state law, or the approval
or consent of any governmental regulatory body, is necessary or desirable in
connection with the issuance or purchase of Shares thereunder, such option may
not be exercised in whole or in part unless such listing, registration,
qualification, approval or consent shall have been effected or obtained free
from any conditions not reasonably acceptable to the Board of Directors or
Committee.
(b) Unless at the time of the exercise of an option and the issuance
of the Shares thereby purchased by any option holder hereunder there shall be in
effect as to such Shares a Registration Statement under the Securities Act and
the rules and regulations of the Securities and Exchange Commission, or there
shall be available an exemption from the registration requirements of the
Securities Act, the option holder exercising such option shall deliver to the
Company at the time of exercise a certificate (i) acknowledging that the Shares
so acquired may be "restricted securities" within the meaning of Rule 144
promulgated under the Securities Act, (ii) certifying that he is acquiring the
Shares issuable to him upon such exercise for the purpose of investment and not
with a view to their sale or distribution; and (iii) containing such option
holder's agreement that such Shares may not be sold or otherwise disposed of
except in accordance with applicable provisions of the Securities Act. The
Company shall not be required to issue or deliver certificates for Shares until
there shall have been compliance with all applicable laws, rules and
regulations, including the rules and regulations of the Securities and Exchange
Commission.
10. Employment of Employee
Nothing contained in the Plan or in any option agreement executed
and delivered thereunder shall confer upon any option holder any right to
continue in the employ of the Company or any Subsidiary or to interfere with the
right of the Company or any Subsidiary to terminate such employment at any time.
<PAGE>
11. Withholding; Disqualifying Disposition
(a) The Company shall deduct and withhold from any salary or other
compensation for employment services of an option holder, all amounts required
to satisfy withholding tax liabilities arising from the grant or exercise of an
option under the Plan or the acquisition or disposition of Shares acquired upon
exercise of any such option.
(b) In the discretion of the Committee and in lieu of the deduction
and withholding provided for in subsection (a) above, the Company shall deduct
and withhold Shares otherwise issuable to the option holder having a fair market
value on the date income is recognized pursuant to the exercise of an option
equal to the amount required to be withheld.
(c) In the case of disposition by an option holder of Shares
acquired upon exercise of an ISO within (i) two years after the date of grant of
such ISO, or (ii) one year after the transfer of such Shares to such option
holder, such option holder shall give written notice to the Company of such
disposition not later than 30 days after the occurrence thereof, which notice
shall include all such information as may be required by the Company to comply
with applicable provisions of the Code and shall be in such form as the Company
shall from time to time determine.
12. Amendment, Suspension and Termination of the Plan
Subject to any required regulatory approval, the Board of Directors
or Committee may at any time amend, suspend or terminate the Plan, provided
that, except as set forth in Section 7 above, no amendment may be adopted
without the approval of stockholders which would:
(a) increase the number of Shares which may be issued pursuant to
the exercise of options granted under the Plan;
(b) permit the grant of an option under the Plan with an option
price less than 100% of the Fair Market Value of the Shares at the time such
option is granted;
(c) change the provisions of Section 4;
(d) extend the term of an option or the period during which an
option may be granted under the Plan; or
(e) decrease an option exercise price (provided that the foregoing
does not preclude the cancellation of an option and a new grant at a lower
exercise price without stockholder approval).
Unless the Plan shall theretofore have been terminated by the Board
of Directors or Committee, the Plan shall terminate on November 6, 2005. No
option may be granted during the term of any suspension of the Plan or after
termination of the Plan. The amendment or termination of the Plan shall not,
without the written consent of the option holder to be affected,
<PAGE>
alter or impair any rights or obligations under any option theretofore granted
to such option holder under the Plan.
13. Effective Date
The effective date of the Plan shall be November 7, 1995, subject to
its approval by shareholders of the Company not later than November 7, 1996.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
505 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 753-7200
February 10, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Nuco2 Inc.
Registration Statement on Form S-8
Gentlemen:
Reference is made to the Registration Statement on Form S-8
dated the date hereof (the "Registration Statement"), filed with the Securities
and Exchange Commission by Nuco2 Inc., a Florida corporation (the "Company").
The Registration Statement relates to an aggregate of 1,201,500 shares (the
"Shares") of common stock, par value $.001 per share (the "Common Stock"), of
the Company. The Shares will be issued and sold by the Company in accordance
with the Company's 1995 Stock Option Plan (the "Plan").
We advise you that we have examined originals or copies
certified or otherwise identified to our satisfaction of the Certificate of
Incorporation and By-laws of the Company, minutes
<PAGE>
Securities and Exchange Commission
February 10, 2000
Page -2-
of meetings of the Board of Directors and stockholders of the Company, the Plan,
the documents to be sent or given to participants in the Plan (the "Prospectus")
and such other documents, instruments and certificates of officers and
representatives of the Company and public officials, and we have made such
examination of law, as we have deemed appropriate as the basis for the opinion
hereinafter expressed. In making such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, and the conformity to original documents of documents submitted to
us as certified or photostatic copies.
Based upon the foregoing, we are of the opinion that the
Shares, when issued and paid for in accordance with the terms and conditions set
forth in the Plan, will be duly and validly issued, fully paid and
non-assessable.
We are members of the Bar of the State of New York. This
opinion is limited to the effects of the Federal laws of the United States of
America and the laws of the State of New York.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to this firm under the
caption "Legal Matters" in the prospectus constituting a part of the
Registration Statement.
Very truly yours,
/S/ OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
NuCo2 Inc. on Form S-8 of our report dated August 20, 1999 appearing in the
Annual Report on Form 10-K of NuCo2 Inc. for the year ended June 30, 1999 and to
the reference to our firm under the heading "Experts" in the Prospectus, which
is part of this Registration Statement.
/s/ Margolin, Winer & Evans LLP
Margolin, Winer & Evans LLP
Garden City, New York
February 10, 2000
