Exhibit
10.7


 


EMPLOYMENT
AGREEMENT


 


AGREEMENT dated September 13,
2007, by and between NUCO2 INC., a Florida corporation having its principal
executive office at 2800 SE Market Place, Stuart, Florida 34997 (hereinafter
referred to as the “Corporation”), and ERIC M. WECHSLER, residing at 9550 S.
Ocean Drive, Jensen Beach, FL 34957 (hereinafter referred to as the “Executive”).


 


W I T N E S S E T H :


 


WHEREAS, the Corporation
desires to employ the Executive and the Executive desires to be employed by the
Corporation upon the terms and subject to the conditions hereinafter set forth,


 


NOW, THEREFORE, in
consideration of the mutual covenants herein contained and for other good and
valuable consideration, it is agreed as follows:


 


ARTICLE
I — EMPLOYMENT TERMS AND DUTIES


 


1.1                                 The Corporation
hereby agrees to employ the Executive and the Executive agrees to work for the
Corporation as its General Counsel and Secretary.  The Executive shall serve as and perform the
duties of General Counsel and Secretary of the Corporation during the Term
(defined hereinafter) of this Agreement.


 


1.2                                 The Executive
agrees to devote his full business time during regular business hours to
working for the Corporation and performing such duties as shall from time to
time be assigned to him by the Board of Directors of the Corporation or the
Chief Executive Officer of the Corporation consistent with his position as
General Counsel and Secretary.  During
the Term of his employment hereunder, the Executive shall have no interest in,
or perform any services during regular business hours for any other company,
whether or not such company is 


 

















 


competitive with the
Corporation, except that this prohibition shall not be deemed to apply to
passive investments in businesses not competitive with the business of the
Corporation or to investments of 5% or less of the outstanding stock of public
companies whose stock is traded on a national securities exchange or in the
over-the-counter market.  For purposes of
this Paragraph 1.2, a “passive investment” shall be deemed to mean investment
in a business which does not require or result in the participation of the
Executive in the management or operations of such business except during times
other than regular business hours and which does not interfere with his duties
and responsibilities to the Corporation. 
Nothing contained herein shall limit the right of the Executive to make
speeches, write articles or participate in public debate and discussions in and
by means of any medium or communication or serve as director or trustee of any
non-competing corporation or organization, provided that such activities are
not inconsistent with the Executive’s obligations hereunder.


 


1.3                                 Consistent with
the Executive’s aforesaid duties the Executive shall, at all times during the
Term hereof, be subject to the supervision and direction of the Board of
Directors of the Corporation and the Chief Executive Officer with respect to
his duties, responsibilities and the exercise of his powers.


 


1.4                                 The services of
the Executive hereunder shall be rendered primarily at the Corporation’s
principal executive office currently in Stuart, Florida; provided, however,
that the Executive shall make such trips outside of Stuart, Florida as shall be
reasonably necessary in connection with the Executive’s duties hereunder.


 


1.5                                 The term of
Executive’s employment hereunder shall commence upon the date of this Agreement
and such employment shall continue, except as otherwise provided herein,
through July 30, 2009 (the “Term”).


 


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ARTICLE
2 - COMPENSATION


 


2.1                                 The Corporation shall
pay to the Executive during the Term of his employment by the Corporation and
the Executive shall accept as his entire compensation for his services
hereunder:


 


(a)                                  A base salary (“Base
Salary”) at the rate of $258,000 per annum, payable in accordance with the
Corporation’s regular payment schedule for its employees.  The Base Salary will be reviewed annually and
may be increased from time to time by the Board of Directors or Chief Executive
Officer of the Corporation.


 


(b)                                 During the Term of
this Agreement and subject to the provisions hereof, the Executive shall be
entitled, commencing with respect to fiscal year ending June 30, 2008 (and
on each June 30 thereafter during the Term of this Agreement), to an
annual bonus based upon the relative performance of the Corporation and the
Executive for the applicable fiscal year. 
The bonus may be comprised of options to purchase shares of the
Corporation’s common stock, $.001 par value per share (“Common Stock”) granted
in accordance with the provisions of the Corporation’s 2005 Executive
Management Stock Option Plan, and cash payments, the relative amounts of which
will be determined in good faith by the Chief Executive Officer, in his sole
discretion, and approved by the Corporation’s Board of Directors.  The Corporation achieving its projected
EBITDA and other operating and financial criteria as projected in the
Corporation’s business plan established by its Board of Directors for the
applicable fiscal year shall be the major considerations in determining the
amount of the annual bonus.  The annual
cash bonus will have a target of thirty-five percent (35%) of Base Salary (the “Target
Cash Bonus”) based on the full achievement of its projected EBITDA and other
operating and financial criteria as projected in the Corporation’s business
plan approved by the Board of Directors and the Executive meeting individual
achievement goals recommended by the Executive and approved by the Chief 


 


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Executive
Officer.  Any Target Cash Bonus earned
shall be paid no later than August 31st following the end of the applicable fiscal
year.


 


(c)                                  The Corporation will
reimburse the Executive for his necessary and reasonable out-of-pocket expenses
incurred in the course of his employment and in connection with his duties
hereunder.


 


(d)                                 The Corporation will
provide the Executive with medical insurance coverage under the Corporation’s
group medical insurance policy and the Executive shall be entitled to
participate in all other health, welfare, retirement, disability, and other
benefit plans, if any, available to employees and senior executives of the
Corporation (collectively, the “Benefit Plans”).


 


(e)                                  The Executive shall be
entitled to paid vacation and/or sick days during each twelve (12) month period
during the Term of this Agreement of the same duration as provided to other
executive officers of the Corporation, but in no event shall he receive less than
four (4) weeks paid vacation per year.


 


ARTICLE
3 - TERMINATION


 


3.1                                 Except as otherwise
provided herein, the Term of the employment of the Executive shall terminate:


 


(a)                                  automatically upon the
death of the Executive or voluntary termination of employment by the Executive
other than for Good Reason (as such term is defined in Paragraph 5.3
below);


 


(b)                                 at the option of the
Corporation, upon written notice thereof to the Executive, in the event that
the Executive shall become permanently incapacitated (as hereinafter defined);


 


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(c)                                  at the option of the
Corporation, upon thirty (30) days’ prior written notice thereof to the
Executive specifying the basis thereof, in the event that the Executive (i) engages
in any criminal conduct constituting a felony and criminal charges are brought
against the Executive by a governmental authority, (ii) knowingly and
willfully fails or refuses to perform his duties and responsibilities in a
manner consistent with his position and other officers of similar position in
the Corporation to the reasonable satisfaction of the Board of Directors of the
Corporation, or (iii) knowingly and willfully engages in activities which
would constitute a material breach of any term of this Agreement, or any
applicable policies, rules or regulations of the Corporation or results in
a material injury to the business condition, financial or otherwise, results of
operation or prospects of the Corporation, as determined in good faith by the
Board of Directors of the Corporation (“Cause”), and such activity is not cured
by the Executive within the thirty (30) day notice period provided to the
Executive.  For purposes of this
Agreement, termination pursuant to this Paragraph 3.1(c) shall be
deemed a termination “for cause”.


 


For purposes of this Agreement, the Executive shall be deemed
permanently incapacitated in the event that the Executive shall, by reason of
his physical or mental disability, fail to substantially perform his usual and
regular duties for the Corporation for a consecutive period of four (4) months
or for six (6) months in the aggregate in any eighteen (18) month period;
provided, however, that the Executive shall not be deemed permanently
incapacitated unless and until a physician, duly licensed to practice medicine
and reasonably acceptable to the Corporation and the Executive, shall certify
in writing to the Corporation that the nature of the Executive’s disability is
such that it will continue as a substantial impediment to the Executive’s
ability to substantially perform his duties hereunder.


 


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(d)                                 At the option of the
Corporation within its sole and complete discretion upon thirty (30) days’
prior written notice.


 


3.2                                 Notwithstanding
anything to the contrary contained herein:


 


(a)                                  In the event that the
Executive shall die during the Term of this Agreement, the Corporation shall,
in lieu of any other compensation payable hereunder, pay to the beneficiaries
theretofore designated in writing by the Executive (or to the Executive’s
estate if no such beneficiaries shall have been designated), a sum equal to one
hundred percent (100%) of the compensation payable to the Executive during the
twelve (12) month period immediately preceding the Executive’s death, payable
in twelve (12) equal monthly installments, without interest, commencing one
month following such death.  The
Executive’s estate shall retain all stock options vested prior to his death, if
any.  To the extent that the Corporation
receives the proceeds on any life insurance on the life of the Executive (as
provided in Paragraph 3.2(d)) such proceeds shall be paid, promptly after
receipt (but no later than thirty (30) days after the Corporation has received
such proceeds), to the beneficiaries theretofore designated in writing by the
Executive (or the Executive’s estate if no such beneficiaries shall have been
designated) to fund the obligations under this Paragraph 3.2(a) and
shall reduce such obligations on a dollar for dollar basis.  The balance, if any, due to the beneficiaries
theretofore designated in writing by the Executive (or the Executive’s estate
if no such beneficiaries shall have been designated) under this Paragraph 3.2(a) shall
thereafter be paid in twelve (12) equal monthly installments, without interest,
commencing one month following the Executive’s death.


 


(b)                                 In the event that the
employment of the Executive shall be terminated by reason of the Executive
becoming permanently incapacitated, then, as additional consideration for his
past services to the Corporation, he shall receive one hundred percent (100%)
of his then 


 


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current
annual Base Salary, in equal monthly installments, without interest, for a
period of twelve (12) months from the date of such termination.  Such payments shall be in addition to all
income disability benefits, if any, which the Executive may receive from
policies provided by or through the Corporation, including state-required short
term disability.  The Executive or, if
applicable, his estate shall retain all stock options vested prior to his
disability, if any.


 


(c)                                  In the event of a
termination of the Executive’s employment “for cause” as defined in Paragraph
3.1(c) above or voluntarily by the Executive other than for Good Reason,
the Executive shall not be entitled to (i) any payments other than such
compensation as shall have been earned by him prior to the date of such
termination and not paid as of
the date of such termination, or (ii) any bonus pursuant to
Paragraph 2.1(b).  The Executive
shall retain all stock options vested prior to the termination of his
employment.


 


(d)                                 In the event that the
Corporation shall desire to fund the death benefits payable under
Paragraph 3.2(a) above with a policy or policies of insurance on the
life of the Executive or the disability benefits payable under
Paragraph 3.2(b) above with a disability policy, the Executive shall
cooperate with the Corporation in obtaining such insurance policy(ies) and shall
submit to such medical examinations and execute such documents as may be
required in connection with the obtaining of such insurance.


 


(e)                                  In the event the
Executive’s employment is terminated at the discretion of the Corporation
pursuant to Paragraph 3.1(d), he will be paid one (1) year’s current
Base Salary in equal quarterly installments during the one (1) year
following the termination of employment and shall retain all stock options
which vested prior to the termination of his employment.


 


(f)                                    In the event of any
termination of the Executive’s employment pursuant to this Article 3 other
than “for cause” as defined in Paragraph 3.1(c), the Executive and/or his 


 


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dependents
and beneficiaries shall continue to participate during the applicable period of
salary continuation in all medical insurance and related benefits provided by
the Corporation on the same basis as prior to the date of his termination.


 


ARTICLE
4 — RESTRICTIVE COVENANTS


 


4.1                                 Confidential
Information.


 


The Executive acknowledges that,
because of his duties and his position of trust under this Agreement, he will
become familiar with trade secrets and other confidential information
(including, but not limited to, operating methods and procedures, secret lists
of actual and potential sources of supply, customers and employees, costs,
profits, markets, sales and plans for future developments) which are valuable
assets and property rights of the Corporation and not publicly known and
Executive acknowledges that public disclosure of such trade secrets and other
confidential information will have an adverse effect on the Corporation and its
business.  Except in connection with the
performance of his duties for the Corporation, the Executive agrees that he
will not, during or at any time after the Term of this Agreement, either
directly or indirectly, disclose to any person, entity, firm or corporation
such trade secrets or other confidential information, including, but not
limited to, any facts concerning the systems, methods, secret lists, procedures
or plans developed or used by the Corporation, and not to release, use, or
disclose the same except with the prior written consent of the
Corporation.  The Executive agrees to
retain all such trade secrets and other confidential information in a fiduciary
capacity for the sole benefit of the Corporation, its successors and
assigns.  All records, files,
memorandums, reports, price lists, customer lists, secret lists, documents,
equipment, systems, methods, procedures and plans, and the like, relating to
the business of the Corporation, which the Executive shall use or prepare or
come into contact with, shall remain the sole property of the 


 


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Corporation.  Upon termination of his employment by the
Corporation or at any time that the Corporation may so request, the Executive
will surrender to the Corporation all non-public papers, notes, reports, plans
and other documents (and all copies thereof) relating to the business of the
Corporation which he may then possess or have under his control.


 


4.2                                 Non-Compete.  The Executive acknowledges that (i) the
services to be performed by him under this Agreement are of a special, unique,
extraordinary and intellectual character; (ii) the Executive possesses
substantial technical and managerial expertise and skill with respect to the
Corporation’s business; (iii) the Corporation’s business is national in
scope and its products and services are marketed throughout the nation; (iv) the
Corporation competes with other businesses that are or could be located in any
part of the nation; (v) the covenants and obligations of Executive under
this Paragraph 4.2 are material inducement and condition to the
Corporation’s entering into this Agreement and performing its obligations hereunder; and (vi) the provisions of this
Paragraph 4.2 are reasonable and necessary to protect the Corporation’s
business.


 


In consideration of the acknowledgment by the Executive above, and in
consideration of the compensation and benefits (including the payments
described in Paragraphs 3.2(e) and 5.1(c)) to be paid or provided to
the Executive by the Corporation, the Executive covenants that he will not, during the
Term and for a period of two (2) years following the expiration or earlier
termination of this Agreement, without the prior written consent of the
Corporation, directly or indirectly:


 


(a)                                  knowingly solicit any
business, in the same product or business line or one that is closely related
to that in which the Executive was engaged during his employment, for or from,
or become associated with, as principal, agent, employee, consultant, or in any
other 


 


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capacity, any person who, or entity
which, at the time of, or
during the twelve (12) months immediately preceding such expiration or
termination was in direct competition with the Corporation; or


 


(b)                                 become a principal,
agent, employee, consultant, or otherwise become associated with any person or
entity which is engaged in direct or indirect competition (i.e., doing
indirectly through others what the Executive could not do directly) with the
Corporation.


 


4.3                                 Enforcement.  The Executive acknowledges that the services
provided by him pursuant to this Agreement are of a unique nature and of
extraordinary value and of such a character that a material breach of the
provisions of either Paragraph 4.1 or 4.2 of this Agreement by the
Executive will result in irreparable damage and injury to the Corporation for
which the Corporation will not have any adequate remedy at law.  Therefore, in the event that the Executive
commits or threatens to commit any such breach, the Corporation will have (a) the
right and remedy to have the provisions of Paragraphs 4.1 and 4.2 of this
Agreement specifically enforced by any court having equity jurisdiction, it
being agreed that in any proceeding for an injunction, and upon any motion for
a temporary or permanent injunction, the Executive’s ability to answer in
damages shall not be a bar or interposed as a defense to the granting of such
injunction and (b) the right and remedy to require the Executive to
account for and to pay over to the Corporation all compensation, profits,
monies, accruals, increments and other benefits (hereinafter referred to
collectively as the “Benefits”) derived or received by him as a result of any
transactions constituting a breach of any of the provisions of
Paragraphs 4.1 and 4.2 of this Agreement, and the Executive hereby agrees
to account for and pay over such Benefits to the Corporation.  Each of the rights and remedies enumerated in
(a) and (b) above shall be independent of the other, and shall be
severally enforceable, and all of such rights and remedies


 


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shall be in addition to, and not in
lieu of, any other rights and remedies available to the Corporation under law
or in equity.


 


If any covenant in this Article 4 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time and geographic area, and such lesser
scope, time, or geographic area, or all of them, as the court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the
Executive.  The undertakings of Article 4
shall survive the termination or cancellation of the Agreement or of the
Executive’s termination.


 


ARTICLE 5 - CHANGE OF CONTROL


 


5.1                                 Compensation.  If prior to the expiration of the Term of
this Agreement, there is a Change of Control (defined in Paragraph 5.2
below) and thereafter, within two (2) years of the Change in Control the
Executive shall resign his employment for Good Reason (as defined in Paragraph
5.3 below), the Executive shall be entitled to the following compensation:


 


(a)                                  Continuation of all
benefits, including without limitation medical, dental, and life insurance for
one (1) year following the date of termination, or until the date on which
the Executive first becomes eligible for insurance coverage of a similar nature
provided by a firm that employs him following termination of employment by the
Corporation, whichever occurs first.


 


(b)                                 Immediate
vesting of any granted but unvested options to purchase Common Stock of the
Corporation held by the Executive.


 


(c)                                  An amount equal
to the greater of (i) the Executive’s then current annual Base Salary and
the Executive’s Target Cash Bonus for the then current year (such Target Cash 


 


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Bonus calculated as if the targets had been met in the event the Target
Cash Bonus cannot be calculated as of the date of the termination of the
Executive’s employment) and (ii) three hundred forty-eight thousand three
hundred dollars ($348,300) to be paid within sixty (60) days of termination of
employment (except as provided
in Paragraph 6.8).  The parties
agree that the amount of $258,000 payable pursuant to this Paragraph 5.1(c) shall
be treated as paid in consideration for the non-compete provisions set forth in
Paragraph 4.2 and shall be subject to the enforcement provisions set forth
in Paragraph 4.3, and the
balance shall be treated as severance.


 


5.2                                 Change of Control.  For the purposes of this Agreement, a Change
of Control means during any
twelve (12) month period (i) the direct or indirect sale, lease, exchange
or other transfer of all or substantially all (50% or more) of the assets of
the Corporation to any person or entity or group of persons or entities acting
in concert as a partnership or other group (a “Group of Persons”), (ii) the
merger, consolidation or other business combination of the Corporation with or
into another corporation with the effect that the shareholders of the
Corporation, as the case may
be, immediately following the merger, consolidation or other business
combination, hold 50% or less of the combined voting power of the then
outstanding securities of the surviving corporation of such merger,
consolidation or other business combination ordinarily (and apart from rights
accruing under special circumstances) having the right to vote in the election
of directors, (iii) the replacement
of a majority of the
Corporation’s Board of Directors in any given year as compared to the directors
who constituted the Corporation’s Board of Directors at the beginning of such
year, and such replacement shall not have been approved by the Corporation’s
Board of Directors, as the case may be, as constituted at the beginning of such
year, or (iv) a person or
Group of Persons shall, as a result of a tender or 


 


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exchange offer, open market
purchases, privately negotiated purchases or otherwise, have become the
beneficial owner (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of securities of the Corporation representing
50% or more of the combined voting power of the then outstanding securities of
such corporation ordinarily (and
apart from rights accruing under special circumstances) having the right to
vote in the election of directors.


 


Notwithstanding anything to the
contrary contained in this Agreement, to the extent that any of the payments
and benefits provided for under this agreement or any other agreement or
arrangement between the Corporation and Executive (collectively, the “Payments”)
(i) constitute a “parachute payment “within the meaning of Section 280G
of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but
for this Paragraph 5.2 would be subject to the excise tax imposed by Section 4999
of the Code, then the Payments shall be payable either (x) in full or (y) as
to such lesser amount which would result in no portion of such Payments being
subject to excise tax under Section 4999 of the Code; whichever of the
foregoing amounts, taking into account the applicable federal, state and local
income taxes and the excise tax imposed by Section 4999, results in
executive’s receipt on an after-tax basis, of the greatest amount of benefits
under this Agreement, notwithstanding that all or some portion of such benefits
may be taxable under Section 4999 of the Code.  Unless Executive and the Corporation
otherwise agree in writing, any determination required under this Section shall
be made in writing by the Corporation’s independent public accountants (the “Accountants”),
whose determination shall be conclusive and binding upon Executive and the
Corporation for all purposes.  For
purposes of making the calculations required by this Section, the Accountants
may make reasonable assumptions and approximations concerning applicable taxes
and may rely in reasonable, good 


 


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faith interpretations concerning
the applicable of Section 280G and 4999 of the Code.  The Corporation and Executive shall furnish
to the Accountants such information and documents as the Accountants may
reasonably request in order to make a determination under this Section.  The Corporation shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Paragraph.  If any
Payments would be reduced pursuant to the immediately preceding sentence but
would not be so reduced if the shareholder approval requirements of section
280G(b)(5) of the Code are satisfied, the Corporation shall use its
reasonable best efforts to cause such payments to be submitted for such
approval prior to the event giving rise to such payments.  If the limitation set forth in this Paragraph
5.2 is applied to reduce an amount payable to Executive, and the Internal
Revenue Service successfully assets that, despite the reduction, Executive has
nonetheless received payments which are in excess of the maximum amount that
could have been paid to Executive without being subjected to any excise tax,
then, unless it would be unlawful for the Corporation to make such loan or
similar extension of credit to Executive, Executive may repay such excess
amount to the Corporation as though such amount constitutes a loan to Executive
made at the date of payment of such excess amount, bearing interest at 120% of
the applicable federal rate (as determined under Section 1274(d) of
the Code in respect of such loan).


 


5.3                                 Good Reason.  The Executive shall have Good Reason for
terminating his employment with the Corporation under this Agreement if one or
more of the following events (each, an “Event”) occurs:


 


(a)                                  an involuntary change in the Executive’s
status or position with the Corporation which constitutes a demotion from the
Executive’s then current status or position 


 


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and a material change in the nature
or scope of powers, authority or duties inherent in such position;


 


(b)                                 layoff or involuntary
termination of the Executive’s employment, except in connection with the
termination of the Executive’s employment for Case or as a result of the
non-renewal of this Agreement or of the Executive’s disability or death;


 


(c)                                  a reduction by the
Corporation in the Executive’s compensation;


 


(d)                                 any action or inaction
by the Corporation that would adversely affect the Executive’s continued
participation in any Benefit Plan on at least as favorable basis as was the
case at the time of such action or inaction, or that would materially reduce
the Executive’s benefits in the future under the Benefit Plan or deprive him of
any material benefits that he then enjoyed, except to the extent that such
action or inaction by the Corporation (i) is also taken or not taken, as
the case may be, in respect of all employees generally, (ii) is required
by the terms of any Benefit Plan as in effect immediately before such action or
inaction, or (iii) is necessary to comply with applicable law or to
preserve the qualification of any Benefit Plan under Section 401(a) of the Code;


 


(e)                                  a material change in
the principal work location; or


 


(f)                                    the failure of the Corporation, its successor or any Group of Persons
acquiring substantially all of the assets of the Corporation to assume any and
all terms of this Agreement; or


 


(g)                                 a material breach of this Agreement by the Corporation, its successor
or any Group of Persons acquiring substantially all of the assets of the
Corporation.


 


Notwithstanding
the foregoing, the Executive shall not have Good Reason unless he has, within
ninety (90) days of the Event, notified the Corporation of the Event in the
manner set 


 


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forth in
Paragraph 6.5 and the Event remains uncured for a period of thirty (30)
days after the Executive provides notice of the Event.


 


5.4                                 Arbitration.  In the event that the
Executive reasonably believes that he has Good Reason to terminate his
employment in reliance upon Paragraph 5.3 hereof, and if the Corporation
disagrees with the Executive’s belief that he has Good Reason to terminate his
employment in reliance upon Paragraph 5.3 hereof, such unresolved dispute
or controversy arising thereunder or in connection therewith shall be settled
exclusively by arbitration conducted in accordance with the rules of the
American Arbitration Association then in effect.  The arbitration shall take place in Martin
County, Florida before a panel of three arbitrators who shall be mutually
agreed upon by the Corporation and the Executive.  The exclusive question for the arbitrators
shall be whether or not Good Reason for the termination exists.  The arbitrators shall not have the authority
to add to, detract from, or modify any provision hereof nor to award punitive
damages to any injured party.  A decision
by a majority of the arbitration panel shall be final and binding on whether “Good
Reason” exists.  Judgment may be entered
on the arbitrators’ award in any court having jurisdiction.  The direct expense of any arbitration
proceeding shall be borne by the Corporation. 
Each party shall bear its own counsel’s fees and expenses.


 


ARTICLE 6 - MISCELLANEOUS


 


6.1                                 Severability.  In the event that any provision, or any
portion of any provision, of this Agreement shall be held to be void or
unenforceable, the remaining provisions of this Agreement, and the remaining
portion of any provision found void or unenforceable in part only, shall
continue in full force and effect.


 


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6.2                                 Representations and
Warranties by the Executive. 
The Executive represents and warrants that he has made no commitment of
any kind whatsoever inconsistent with the provisions of this Agreement and that
he is under no disability of any kind to enter into this Agreement and to
perform all of his obligations hereunder.


 


6.3                                 Binding Effect.  This Agreement shall inure to the benefit of
and shall be binding upon the parties and their respective successors and
permitted assigns.  This Agreement being
personal to the Executive, cannot be assigned by him.  This Agreement may be assigned by the
Corporation in the event and in connection with a merger, consolidation or sale
of all or substantially all of the assets of the Corporation provided that the
assignee agrees in writing to assume all of the obligations of the Corporation
under this Agreement and such assignment shall not relieve the Corporation of
its obligations hereunder.  Prompt
written notice of such assignment shall be provided by the Corporation to the
Executive.


 


6.4                                 Jurisdictional Consent.  Except as specifically set forth herein, any
dispute or controversy between the parties relating to or arising out of this
Agreement, or any amendment or modification hereof shall be determined by the
Circuit Court, County of Martin, State of Florida.  The service of any notice, process, motion or
other document in connection with an action under this Agreement, may be
effectuated by either personal service upon a party or by certified mail
directly addressed to him at his address set forth on Page 1 hereof.


 


6.5                                 Notices.  Any notice or communication required or
permitted to be given hereunder shall be deemed duly given if delivered
personally or sent by registered or certified mail, return receipt requested,
to the address of the intended recipient as herein set forth or to such other
address as a party may theretofore have specified in writing to the other.  Any notice 


 


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or communication intended for the
Corporation shall be addressed to the attention of its Board of Directors.


 


6.6                                 Waiver.  A waiver of any breach or violation of any
term, provision, agreement, covenant, or condition herein contained shall not
be deemed to be a continuing waiver or a waiver of any future or past breach or
violation.


 


6.7                                 Entire
Agreement/Governing Law.  This Agreement
constitutes the entire agreement and understanding between the Corporation and
the Executive relating to the latter’s employment, supersedes any prior
agreement between the parties relating to such matter, shall be governed by and
construed in accordance with the laws of the State of Florida and may not be
changed, terminated or discharged orally.


 


6.8                                 Section 409A.  It is the intention of the parties hereto that this Agreement comply strictly
with the provisions of Section 409A of the Code, and Treasury Regulations
and other Internal Revenue Service guidance (the “Section 409A Rules”).  Accordingly, this Agreement, including, but
not limited to, any provision relating to severance payments, Change in Control
payments or the terms of any grants of stock options hereunder, including, but
not limited to, the timing of payments, may be amended from time to time with
the consent of the Executive as may be necessary or appropriate to comply with,
and to avoid adverse tax consequences under the Section 409A Rules.  The Executive agrees that no payment will be
made to him until such time as the payment may be made without the imposition
of the 20% excise tax imposed by Section 409A of the Code by virtue of Section 409A(a)(2)(B)(i) of
the Code (which, if applicable, generally provides that no payment, other than
certain severance payments, may be made to a key employee of a public company
prior to the date that is six months following separation from service within
the meaning of Section 409A of the Code).


 


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IN WITNESS WHEREOF, the
parties hereto have hereunto set their hands as of the day and year first above
written.


 


	
   

  	
  NUCO2 INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Michael E. DeDomenico

  
	
   

  	
  Name:

  	
  Michael
  E. DeDomenico

  
	
   

  	
  Title:

  	
  Chairman
  and CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/
  Eric M. Wechsler

  
	
   

  	
  ERIC
  M. WECHSLER

  



 


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