Exhibit 10.10


 


EMPLOYMENT AGREEMENT


 


AGREEMENT dated July 1, 2008, 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 J. ROBERT VIPOND, currently
residing at 631 Long Ridge Road #17, Stamford, CT 06902 (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 1 - EMPLOYMENT TERMS AND DUTIES


 


1.1           The Corporation hereby agrees to employ the Executive
and the Executive agrees to provide services for the Corporation initially as
its Executive Vice President and after December 31, 2008 as its Executive
Vice President and Chief Financial Officer. 
The Executive shall initially serve as and perform the duties of
Executive Vice President and subsequently thereto as Executive Vice President
and Chief Financial Officer 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 (“Board”) or the Chief Executive 


 


1

















 


Officer of the Corporation consistent with his
position initially as Executive Vice President and then as Executive Vice
President and Chief Financial Officer. 
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.  Notwithstanding the foregoing, the Executive
may, with the review and concurrence of the Board and the Chief Executive
Officer of the Corporation, join the board of directors (or similar governing
body) of one business entity.  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 of communication or serve as a 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 and the Chief Executive Officer with
respect to his duties, responsibilities and the exercise of his powers.


 


2

















 


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 the Executive’s employment hereunder shall
commence upon the date of this Agreement and such employment shall continue,
except as otherwise provided herein, through June 30, 2013 (the “Term”).


 


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 $325,000
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 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, 2009 (and on each June 30 thereafter
during the Term of this Agreement), to an annual cash bonus based upon the
relative performance of the Corporation and the Executive for the applicable
fiscal year, the amount of which will be determined in good faith by the Chief
Executive Officer, in his sole discretion, and approved by the Board.  The Corporation achieving its 


 


3

















 


projected EBITDA and/or other operating and financial
criteria as projected in the Corporation’s business plan established by the Board
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 fifty percent (50%) 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 and the Executive meeting individual
achievement goals recommended by the Executive and approved by the Chief
Executive Officer.  Any Target Cash Bonus
earned shall be paid no later than sixty (60) days 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 make available to 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.


 


4

















 


(f)            The Executive shall receive $650 per month to cover
the costs of the Executive’s automobile lease and other incidentals plus a
gross up for any income taxes incurred in connection therewith.


 


(g)           No later than September 30, 2008, NUCO2 Parent Inc., a
Delaware corporation (“Parent”) shall award to the Executive an option to
purchase 1,931 shares of Parent common stock under the Parent’s 2008 Stock
Incentive Plan, in accordance with the terms of a stock option agreement (“Option”).


 


(h)           The Corporation shall pay the Executive’s (a) out
of pocket costs, including sales commission, conveyance taxes and legal fees
customary in the State of Connecticut (the “Connecticut Out of Pocket Sales
Costs”), to sell his current residence in Stamford, Connecticut (the “Connecticut
Residence”), provided that the aggregate of such costs does not exceed the
greater of (x) 6% of the sales price of the Connecticut Residence and (y) $160,000,
(b) temporary housing and transportation costs for a period of one year in
the amount of $36,000, which shall be paid in twenty-six equal bi-weekly
installments of $1,384.62 commencing as of July 20, 2008 and (c) out
of pocket costs as are customary in the State of Florida to purchase a
residence in Florida, provided that the aggregate of such costs does not exceed
$20,000.  In the event that the Executive
shall notify the Corporation prior to July 20, 2009 that he does not
intend to sell the Connecticut Residence, the Corporation shall not pay the
Connecticut Out of Pocket Sales Costs but shall instead pay temporary housing
and transportation costs for an additional 2 1⁄2 years from July 20, 2009 in
the amount of $90,000, which shall be paid in sixty-five equal bi-weekly
installments of $1,384.62.  Any sums paid
pursuant to this Paragraph 2.1(h) by the Corporation shall be grossed up
to eliminate the cost to the Executive of income taxes, if any, paid on such
sums received.


 


5

















 


(i)            The Corporation shall pay the reasonable costs to move
the Executive’s household goods from his current resident to a residence within
seventy-five miles of the Corporation’s principal executive offices in Stuart,
Florida.


 


(j)            The Executive shall be paid a signing bonus of $50,000
no later than January 31, 2009, the timing of such payment at the
Executive’s discretion.


 


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);


 


(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 


 


6

















 


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, 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.


 


(d)           At the option of the Corporation without Cause within
its sole and complete discretion upon thirty (30) days’ prior written notice.


 


(e)           At the option of the Executive, for Good Reason (as
defined in Paragraph 5.3), 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 


 


7

















 


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.  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.  In addition, the Corporation shall pay to the
Executive’s estate any amounts pursuant to Paragraph 2.1(h) not paid as of
the date the Executive’s employment terminated pursuant to Paragraph 3.1(a).


 


(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 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 


 


8

















 


by or through the Corporation, including
state-required short term disability.  In
addition, the Corporation shall pay to the Executive any amounts pursuant to
Paragraph 2.1(h) not paid as of the date the Executive’s employment
terminated pursuant to Paragraph 3.1(b).


 


(c)           In the event of a termination of the Executive’s
employment for Cause 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).


 


(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 without Cause pursuant to Paragraph
3.1(d), or the Executive terminates his employment under Paragraph 3.1(e) for
Good Reason, at any time other than during the two-year period following a
Change in Control, he will be paid (i) in consideration for the
non-compete provisions set forth in Paragraph 4.2, one (1) year’s
current Base Salary in equal quarterly installments during the one (1) year
following the termination of employment and (ii) a pro rata portion of the
Target Cash Bonus he would have received during the year of termination had the
Executive not been terminated based on the number of whole or partial months in
which the 


 


9

















 


Executive had been employed during the fiscal year
that the Executive was terminated payable if and when similar performance
bonuses are paid to the other executive officers of the Corporation in respect
of the Corporation’s performance for such fiscal year.  In addition, the Corporation shall pay to the
Executive any amounts pursuant to Paragraph 2.1(h) not paid as of the date
the Executive’s employment terminated pursuant to Paragraph 3.1(d) or
Paragraph 3.1(e).


 


(f)            In the event of any termination of the Executive’s
employment pursuant to this Article 3, excepting a termination by the
Corporation for Cause and a termination by the Executive not for Good Reason,
the Executive and/or his 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.  In
connection with any termination of the Executive’s employment pursuant to this Article 3,
the Executive shall receive (i) his unpaid Base Salary accrued through the
date of termination; (ii) his unused vacation accrued through the date of
termination; (iii) all of his accrued and vested benefits due under all
employee benefit plans in which the Executive is participating; (iv) other
than in connection with a termination for Cause, any earned and unpaid Target
Cash Bonus and long-term cash incentive for the previous completed fiscal year
and long-term incentive cycle; and (v) all unreimbursed business expenses
incurred through the date of termination and otherwise qualifying under
applicable Corporation policy.


 


(g)           Upon the termination of the Executive’s employment,
the consequences of such termination upon the Executive’s Option shall be
governed by the terms of the Option.


 


10














 


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 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 


 


11

















 


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 acknowledgments by
the Executive above, and in consideration of the compensation and benefits
(including the payments described in Paragraphs 3.2(e) and 5.1(b)) 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 capacity, any person
who, or entity which, at the time of, or during the twelve (12) months 


 


12

















 


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 


 


13

















 


remedies 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 Corporation shall terminate the Executive’s
employment other than for Cause or the Executive shall resign his employment
for Good Reason, the Executive shall be entitled to the following compensation
(which compensation shall be in lieu of, and not in addition to, benefits
otherwise payable under Paragraph 3.2):


 


(a)           Continuation of all benefits, including without
limitation medical, dental and life insurance for one and one-half (11⁄2) years
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.


 


14

















 


(b)           A lump sum payment of an amount equal to the greater
of (i) one and one-half (11⁄2) times the sum of (y) the Executive’s
then current annual Base Salary plus (z) the Executive’s Target Cash Bonus
for the then current year (such Target Cash 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) seven
hundred thirty-one thousand two hundred fifty dollars ($731,250), to be paid
within sixty (60) days of termination of employment (except as provided in
Paragraph 6.8); provided such amount shall be paid in equal quarterly
installments over such period as is provided in Paragraph 3.2(e) if the
Change in Control is not also a change in the ownership or effective control of
the Corporation or in the ownership of a substantial portion of the assets of
the Corporation (within the meaning of Section 409A(b)(2)(v) of the
Code (as defined at Paragraph 5.2(b)) and the Treasury regulations
thereunder).  The parties agree that the
amount of $650,000 payable pursuant to this Paragraph 5.1(b) 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.


 


(a)           For the purposes of this Agreement, a Change of
Control means the occurrence, during any twelve (12) month period, of: (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, 


 


15

















 


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 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.


 


(b)           If, by reason of, or in connection with, any
transaction that occurs at any time after the date of this Agreement, the
Executive would be subject to the imposition of the excise tax imposed by Section 4999
of the Internal Revenue Code of 1986, as amended (“Code”), but the imposition
of such tax could be avoided by approval of shareholders described in Section 280G(b)(5)(B) of
the Code, then the Executive may cause the Corporation to seek such approval,
in which case the Corporation shall use its commercially reasonable efforts to
cause such approval to be obtained and the Executive shall cooperate and
execute such waivers as may be necessary so that such approval avoids
imposition of any excise tax under Section 4999.  If the Executive fails to cause the
Corporation to seek such approval, Subparagraph (i) below shall not 


 


16

















 


apply and the Executive shall not be entitled to any
gross-up payment for any resulting tax under Section 4999.  If such approval, even if sought and
obtained, would not qualify for exemption, under Section 280G(b)(5)(A)(ii) of
the Code, from the excise tax imposed under Section 4999, then the
following provisions shall apply without any precedent obligation of the
Executive to seek such approval:


 


(i)            Anything in this Agreement
to the contrary notwithstanding, in the event it shall be determined that any
payment, benefit or distribution (including an acceleration of vesting, a lapse
of restrictions on amounts otherwise subject to vesting, or a combination
thereof) by the Corporation, any of its affiliates, or one or more trusts
established by the Corporation for the benefit of its employees, to or for the
benefit of the Executive (a “Payment”) would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties are incurred
by the Executive with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively referred to
as the “Excise Tax”), then the Executive shall be entitled to receive an
additional payment (a “Gross-Up Payment”) in an amount such that after payment
by the Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, all Federal, state and
local income and employment taxes (and any interest and penalties imposed with
respect thereon) and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payment.  Notwithstanding
the foregoing provisions of this Paragraph 5.2(b)(i), if it shall be determined
that the Executive is entitled to a Gross-Up Payment, but that the payments,
benefits and distributions resulting in the imposition of the Excise Tax do not
exceed 110% of the greatest amount that could be paid to the Executive without
giving rise to any Excise Tax (the “Safe Harbor Amount”), then no Gross-Up
Payment 


 


17

















 


shall be made to the Executive and the
amounts payable under this Agreement shall be reduced so that the payments or
distributions, in the aggregate, are reduced to the Safe Harbor Amount.


 


(ii)           Subject to the provisions of
part (iii) of this Paragraph 5.2(b), all determinations required to be
made under this Paragraph 5.2(b), including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by one of the major
internationally recognized certified public accounting firms (commonly referred
to, as of the date hereof, as a Big Four firm) designated by the Executive and
approved by the Corporation (which approval shall not be unreasonably withheld)
(the “Accounting Firm”), which shall provide detailed supporting calculations
both to the Corporation and the Executive within fifteen (15) business days of
the receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Corporation.  In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or group affecting
the change in the ownership or effective control of the Corporation or in the
ownership of a substantial portion of the assets of the Corporation (within the
meaning of Section 280G(b)(2)(A)(i) of the Code), the Executive shall
designate another Big Four accounting firm (subject to the approval of the
Corporation, which approval shall not be unreasonably withheld) to make the
determinations required hereunder (which accounting firm shall then be referred
to as the Accounting Firm hereunder). 
All fees and expenses of the Accounting Firm shall be borne solely by
the Corporation.  Any Gross-Up Payment,
as determined pursuant to this Paragraph 5.2(b), shall be paid by the
Corporation to the Executive within five (5) days of the receipt of the
Accounting Firm’s determination.  Any
determination by the Accounting Firm shall be binding upon the Corporation and
the Executive, except as provided in this part (ii) below and in parts (iii) and
(iv) 


 


18

















 


of this Paragraph
5.2(b).  As a result of the uncertainty
in the application of Section 280G and Section 4999 of the Code at
the time of the initial determination by the Accounting Firm hereunder, it is possible
that Gross-Up Payments which will not have been made by the Corporation should
have been made (“Underpayment”) consistent with the calculations required to be
made hereunder.  In the event that the
Corporation exhausts its remedies pursuant to part (iii) of this Paragraph
5.2(b) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the Corporation
to or for the benefit of the Executive.


 


(iii)          The Executive shall notify
the Corporation in writing of any claim by the Internal Revenue Service that,
if successful, would require the payment by the Corporation of the Gross-Up
Payment.  Such notification shall be
given as soon as practicable but no later than fifteen (15) business days after
the Executive is informed in writing of such claim and shall apprise the
Corporation of the nature of such claim and the date on which such claim is
requested to be paid.  The Executive
shall not pay such claim prior to the expiration of the thirty (30) day period
following the date on which the Executive gives such notice to the Corporation
(or such shorter period ending on the date that any payment of taxes with
respect to such claim is due).  If the
Corporation notifies the Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive shall:


 


(A)          give the Corporation any
information reasonably requested by the Corporation relating to such claim,


 


19

















 


(B)           take such action in
connection with contesting such claim as the Corporation shall reasonably
request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Corporation,


 


(C)           cooperate with the
Corporation in good faith in order to effectively contest such claim, and


 


(D)          permit the Corporation to
participate in any proceedings relating to such claim;


 


provided, however, that the
Corporation shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such contest and
shall indemnify and hold the Executive harmless, on an after-tax basis, for any
Excise Tax or income tax (including interest and penalties with respect
thereto) imposed as a result of such representation and payment of costs and
expenses.  Without limitation on the
foregoing provisions of this part (iii) of this Paragraph 5.2(b), the
Corporation shall control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forego any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct the Executive
to pay the tax claimed and sue for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Corporation shall determine; provided,
however, that if the Corporation directs the Executive to pay such claim and
sue for a refund, the Corporation shall advance the amount of such payment to
the Executive, on an interest-free basis and shall indemnify and hold the
Executive harmless, on an after-tax basis,


 


20














 


from any Excise Tax or
income tax (including interest and penalties with respect thereto) imposed with
respect to such advance or with respect to any imputed income with respect to
such advance; and provided, further, that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Executive with respect
to which such contested amount is claimed to be due is limited solely to such
contested amount.  Furthermore, the
Corporation’s control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Executive shall be
entitled to settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority.


 


(iv)          If, after the receipt by the
Executive of an amount advanced by the Corporation pursuant to part (iii) of
this Paragraph 5.2(b), the Executive becomes entitled to receive any refund
with respect to such claim, the Executive shall promptly take all necessary action
to obtain such refund and (subject to the Corporation’s complying with the
requirements of part (iii) of this Paragraph 5.2(b)) upon receipt of such
refund shall promptly pay to the Corporation the amount of such refund
(together with any interest paid or credited thereon after taxes applicable
thereto).  If after the receipt by the
Executive of an amount advanced by the Corporation pursuant to part (iii) of
this Paragraph 5.2(b), a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Corporation does not
notify the Executive in writing of its intent to contest such denial of refund
prior to the expiration of thirty (30) days after such determination, then such
advance shall be forgiven and shall not be required to be repaid and the amount
of such advance shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.


 


21

















 


5.3           Good Reason.  The Executive
shall have Good Reason for terminating his employment with the Corporation
under this Agreement, whether occurring prior to, or upon or after, the
occurrence of a Change of Control, 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 and a material change in the nature or scope of
powers, authority or duties inherent in such position;


 


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


 


(c)           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;


 


(d)           a material change in the principal work location;


 


22

















 


(e)           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


 


(f)            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 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 


 


23

















 


proceeding shall be borne by the Corporation.  Each party shall bear its own counsel’s fees
and expenses.


 


5.5           Except as provided in Paragraph 5.2(b), upon the
occurrence of a Change in Control, the consequences of such Change in Control
upon the Executive’s Option shall be governed by the terms of the Option.


 


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.


 


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 


 


24

















 


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 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 


 


25

















 


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).


 


6.9           Indemnification.  The
Corporation and the Executive have entered into a directors and officers
indemnification agreement dated of even date herewith.


 


26

















 


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


 


	
   

  	
  NUCO2 INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eric M. Wechsler

  
	
   

  	
  Name:

  	
  Eric M. Wechsler

  
	
   

  	
  Title:

  	
  General Counsel and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ J. Robert Vipond

  
	
   

  	
  J. ROBERT VIPOND