Exhibit 10.12


 


NuCO2 Parent Inc.


 


2008
STOCK INCENTIVE PLAN


 


Section 1.  PURPOSE OF PLAN


 


The purpose of
this 2008 Stock Incentive Plan (“Plan”) of NuCO2 Parent Inc., a Delaware corporation (the “Company”),
is to enable the Company to attract, retain and motivate (i) the
employees, non-employee directors, independent contractors and consultants of
the Company or any of its subsidiaries, (ii) members of the Advisory
Committee (the “Advisors”) of Aurora Management Partners L.P., a Delaware
limited partnership (“AMP”), and (iii) employees of AMP (the “AMP
Employees”) by providing for or increasing the proprietary interests of such
employees, non-employee directors, independent contractors, consultants,
Advisors and AMP Employees in the Company.


 


Section 2.  PERSONS ELIGIBLE UNDER PLAN


 


Any Advisor, AMP
Employee or employee, non-employee director, independent contractor or
consultant of the Company or any of its subsidiaries (each, a “Participant”),
shall be eligible to be considered for the grant of Awards (as hereinafter
defined) hereunder.


 


Section 3.  AWARDS


 


(a)           Subject to Section 3(b), the Committee (as
hereinafter defined), on behalf of the Company, is authorized under this Plan
to enter into any type of arrangement with a Participant that is not inconsistent
with the provisions of this Plan and that, by its terms, involves or might
involve the issuance of (i) shares of the Common Stock, par value $0.01,
of the Company (the “Common Shares”) or (ii) a Derivative Security (as
such term is defined in Rule 16a-1 promulgated under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), as such rule may be
amended from time to time) with an exercise or conversion privilege at a price
related to the Common Shares or with a value derived from the value of the
Common Shares.  The entering into of any
such arrangement is referred to herein as the “grant” of an “Award.”


 


(b)           Awards are not restricted to any specified form or
structure and may include, without limitation, sales or bonuses of stock,
restricted stock, stock options, reload stock options, stock purchase warrants,
other rights to acquire stock, securities convertible into or redeemable for
stock, stock appreciation rights, phantom stock, dividend equivalents,
performance units or performance shares, and an Award may consist of one such
security or benefit, or two or more of them in tandem or in the alternative.


 


(c)           Awards may be issued, and Common Shares may be issued
pursuant to an Award, for any lawful consideration as determined by the Committee,
including, without limitation, services rendered by the recipient of such
Award.


 

















 


(d)           Subject to the provisions of this Plan, the Committee,
in its sole and absolute discretion, shall determine all of the terms and
conditions of each Award granted under this Plan, which terms and conditions
may include, among other things:


 


(i)           a provision permitting the recipient of
such Award, including any recipient who is a director or officer of the Company
or any of its subsidiaries, to pay the purchase price of the Common Shares or
other property issuable pursuant to such Award, or such recipient’s tax
withholding obligation with respect to such issuance, in whole or in part, by
any one or more of the following:


 


(A)          the delivery of cash;


 


(B)           the delivery of other property deemed
acceptable by the Committee;


 


(C)           the delivery of previously owned shares
of capital stock of the Company (including “pyramiding”) or other property;


 


(D)          a reduction in the amount of Common
Shares or other property otherwise issuable pursuant to such Award (such
reduction to be valued on the basis of the aggregate Fair Market Value, on the
date of exercise, of the additional Common Shares that would have been
delivered to the Participant upon exercise of the Award), provided that the Company
is not then prohibited from purchasing or acquiring Common Shares; or


 


(E)           the delivery of a promissory note of the
recipient or of a third party, the terms and conditions of which shall be
determined by the Committee.


 


(ii)           provisions specifying the exercise or
settlement price for any option, stock appreciation right or similar Award, or
specifying the method by which such price is determined, provided that the
exercise or settlement price of any option, stock appreciation right or similar
Award shall be not less than the Fair Market Value of a Common Share on the
date such Award is granted;


 


(iii)          provisions
relating to the exercisability and/or vesting of Awards, lapse and non-lapse
restrictions upon the Common Shares obtained or obtainable under Awards or
under the Plan and the termination, expiration and/or forfeiture of Awards;


 


(iv)            a provision conditioning or accelerating
the receipt of benefits pursuant to such Award, either automatically or in the
discretion of the Committee, upon the occurrence of specified events,
including, without limitation, a change of control (as defined by the
Committee) of the Company or certain specified affiliates of the Company (as
specified by the Committee), an acquisition of a specified percentage of the
voting power of the Company, the dissolution or liquidation of the Company, the
financial


 


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performance of the
Company, a sale of substantially all of the property and assets of the Company
or an event of the type described in Section 7 hereof;


 


(v)           a provision required in order for such
Award to qualify (A) as an incentive stock option under Section 422
of the Code (an “Incentive Stock Option”), (B) as “performance based
compensation” under Section 162(m) of the Code, and/or (C) for
an exemption from Section 16 of the Exchange Act; or


 


(vi)            provisions restricting the
transferability of Awards or Common Shares issued under Awards.


 


(e)           For purposes of any Award under this Plan, unless
provided otherwise in the grant of such Award, the “Fair Market Value” of a
Common Share or other security on any date (the “Determination Date”) shall be
equal to the closing price per Common Share or unit of such other security on
the business day immediately preceding the Determination Date, as reported in
The Wall Street Journal, Western Edition, or, if no closing price was so
reported for such immediately preceding business day, the closing price for the
next preceding business day for which a closing price was so reported, or, if
no closing price was so reported for any of the 30 business days immediately
preceding the Determination Date, the average of the high bid and low asked
prices per Common Share or unit of such other security on the business day
immediately preceding the Determination Date in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotations System or such other system then in use, or, if the Common Shares or
such other security were not quoted by any such organization on such
immediately preceding business day, the average of the closing bid and asked
prices on such day as furnished by a professional market maker making a market
in the Common Shares or such other security selected by the Board of Directors
of the Company (the “Board”), or, if no such market was made in the Common
Shares or such other security, the value of a Common Share or such other
security as determined by the Board in its sole discretion, but in any event
consistent with Section 409A of the Code. 
The Fair Market Value of a Common Share as of the effective date of this
Plan as provided in Section 9 hereof is $1,000.


 


Section 4.  STOCK SUBJECT TO PLAN


 


(a)           The aggregate number of Common Shares that may be
issued pursuant to all Incentive Stock Options granted under this Plan shall
not exceed 18,090, subject to adjustment as provided in Section 7 hereof.


 


(b)           At any time, the aggregate number of Common Shares
issued and issuable pursuant to all Awards (including all Incentive Stock Options)
granted under this Plan shall not exceed 18,090, subject to adjustment as
provided in Section 7 hereof.


 


(c)           For purposes of Section 4(b) hereof, the
aggregate number of Common Shares issued and issuable pursuant to Awards
granted under this Plan shall at any time be deemed to be equal to the sum of
the following:


 


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(i)           the number of Common Shares that were
issued prior to such time pursuant to Awards granted under this Plan, other
than Common Shares that were subsequently reacquired by the Company pursuant to
the terms and conditions of such Awards and with respect to which the holder
thereof received no benefits of ownership such as dividends; plus


 


(ii)            the number of Common Shares that were
otherwise issuable prior to such time pursuant to Awards granted under this
Plan, but that were withheld by the Company as payment of the purchase price of
the Common Shares issued pursuant to such Awards or as payment of the recipient’s
tax withholding obligation with respect to such issuance; plus


 


(iii)            the
maximum number of Common Shares that are or may be issuable at or after such
time pursuant to Awards granted under this Plan prior to such time.


 


Section 5.  DURATION OF PLAN


 


No Awards shall be
made under this Plan after May 28, 2018. 
Although Common Shares may be issued after May 28, 2018 pursuant to
Awards made prior to such date, no Common Shares shall be issued under this
Plan after May 28, 2028.


 


Section 6.  ADMINISTRATION OF PLAN


 


(a)           This Plan shall be administered by a committee (the “Committee”)
of the Board, which Committee shall initially consist of the entire Board.  In the event that the Company becomes “publicly
held” within the meaning of § 162(m) of the Code, then the Committee
shall consist of two or more directors, each of whom:  (i) is a “non-employee director” (as
such term is defined in Rule 16b-3 promulgated under the Exchange Act, as
such Rule may be amended from time to time), and (ii) is an “outside
director” within the meaning of Section 162(m) of the Code.


 


(b)           Subject to the provisions of this Plan, the Committee
shall be authorized and empowered to do all things necessary or desirable in
connection with the administration of this Plan, including, without limitation,
the following:


 


(i)           adopt, amend and rescind rules and
regulations relating to this Plan;


 


(ii)            determine which persons are eligible to
participate in the Plan and to which of such persons, if any, Awards shall be
granted hereunder;


 


(iii)            grant
Awards to Participants and determine the terms and conditions thereof,
including the number of Common Shares issuable pursuant thereto;


 


(iv)            determine the extent to which adjustments
are required pursuant to Section 7 hereof; and


 


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(v)           interpret and construe this Plan and the
terms and conditions of any Award granted hereunder.


 


Section 7.  ADJUSTMENTS


 


If the outstanding
securities of the class then subject to this Plan are increased, decreased or
exchanged for or converted into cash, property or a different number or kind of
securities, or if cash, property or securities are distributed in respect of
such outstanding securities, in either case as a result of a reorganization,
merger, consolidation, recapitalization, restructuring, reclassification,
dividend (other than a regular, quarterly cash dividend) or other distribution,
stock split, reverse stock split or the like, or if substantially all of the
property and assets of the Company are sold, then the Committee shall make
appropriate and proportionate adjustments in (a) the number and type of
shares or other securities or cash or other property that may be acquired
pursuant to Incentive Stock Options and other Awards theretofore granted under
this Plan, (b) the maximum number and type of shares or other securities
that may be issued pursuant to Incentive Stock Options and other Awards
thereafter granted under this Plan, and (c) the minimum option exercise
price set forth in Section 3(d)(ii).


 


Section 8.  AMENDMENT AND TERMINATION OF PLAN


 


The Board may
amend or terminate this Plan at any time and in any manner, provided, however, that no such amendment or termination
shall deprive the recipient of any Award theretofore granted under this Plan,
without the consent of such recipient, of any of his or her rights thereunder
or with respect thereto.


 


Section 9.  EFFECTIVE DATE OF PLAN


 


This Plan shall be
effective as of May 28, 2008, the date as of which it was approved by the
Board; provided, however, that no Common Shares
may be issued under this Plan until it has been approved, directly or
indirectly, by the affirmative votes of the holders of a majority of the
securities of the Company present, or represented, and entitled to vote by
unanimous written consent or at a meeting duly held in accordance with the laws
of the State of Delaware.


 


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