Exhibit
10.5


 


EMPLOYMENT AGREEMENT


 


AGREEMENT
dated May 28, 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 RANDY GOLD, residing at 100 Brookhaven Court,
Palm Beach Gardens, FL 33418 (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 Executive shall serve as and
perform the duties of Senior Vice President of Sales and Customer Service 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 Officer
of the Corporation consistent with his position as Senior Vice President of
Sales and Customer Service.  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


 


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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 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.


 


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 May 28,
2013 (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 $220,000 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, 2008 (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
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.


 


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(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.


 


(f)            On the date of this Agreement, NUCO2
Parent Inc., a Delaware corporation (“Parent”) shall award to the Executive an
option to purchase 1,743 shares of Parent common stock under the Parent’s 2008
Stock Incentive Plan, in accordance with the terms of a stock option agreement
dated of even date herewith (“Option”).


 


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);


 


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(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 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 


 


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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 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.


 


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(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 by or through the Corporation, including state-required short
term disability.


 


(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 


 


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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 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.


 


(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.


 


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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 documents (and all copies thereof) relating to
the business of the Corporation which he may then possess or have under his
control.


 


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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 immediately
preceding such expiration or termination was in direct competition with the
Corporation; or


 


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


 


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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 (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)           A lump sum payment of an amount equal
to the greater of (i) the sum of the Executive’s then current annual Base
Salary plus 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 


 


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employment) and (ii) three
hundred thirty thousand dollars ($330,000), 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 $220,000 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, 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 


 


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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 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:


 


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(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
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 


 


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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) 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


 


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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,


 


(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,


 


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(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, 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 


 


18

















 


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.


 


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:


 


19

















 


(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;


 


(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 


 


20

















 


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.


 


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 


 


21

















 


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 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 


 


22

















 


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 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 


 


23

















 


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.


 


24

















 


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/
  Randy Gold

  
	
   

  	
  RANDY
  GOLD