Exhibit 10.17


 


INDEMNIFICATION AGREEMENT


 


THIS
INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of                      ,
by and between NuCo2 Inc., a Florida corporation (the “Company”),
and the undersigned director or officer of the Company (the “Indemnitee”), with
reference to the following facts:


 


The
Indemnitee is currently serving as a director or officer of the Company and the
Company wishes the Indemnitee to continue in such capacity. The Indemnitee is
willing, under certain circumstances, to continue serving as a director or
officer of the Company.


 


The
Indemnitee has indicated that he or she does not regard the indemnities
available under the Company’s Articles of Incorporation and Bylaws as adequate
to protect him or her against the risks associated with his or her service to
the Company and has noted that the Company’s directors’ and officers’ liability
insurance policy has numerous exclusions and a deductible and thus does not
adequately protect Indemnitee. In this connection, the Company and the
Indemnitee now agree they should enter into this Agreement in order to provide
greater protection to Indemnitee against such risks of service to the Company.


 


Section 607.0850
of the Florida Business Corporation Act, under which Act the Company is organized,
empowers corporations to indemnify a person serving as a director, officer,
employee or agent of the corporation and a person who serves at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise, and said Section 607.0850
specifies that the indemnification shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled under the
Articles of Incorporation, any Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, subject to Section 607.0850(7).


 


In
order to induce the Indemnitee to continue to serve as a director or officer of
the Company and in consideration of his or her continued service, the Company
hereby agrees to indemnify the Indemnitee as follows:


 


1.                                       Indemnity.  The Company will indemnify the Indemnitee,
his or her executors, administrators or assigns, for any Expenses (as defined
below) which the Indemnitee is or becomes legally obligated to pay in
connection with any Claim, except as otherwise provided in this Agreement. As
used in this Agreement, the term “Claim” shall include, without limitation, any
threatened, pending or completed claim, action, suit or proceeding, whether brought
by or in the right of the Company or otherwise and whether of a civil,
criminal, administrative or investigative nature, in which the Indemnitee may
be or may have been involved as a party or otherwise, by reason of the fact
that Indemnitee is or was a director or officer of the Company, by reason of
any actual or alleged error or misstatement or misleading statement made or
suffered by the Indemnitee, by reason of any action taken by Indemnitee or of
any inaction on his or her part while acting as such director or officer, or by
reason of the fact that Indemnitee was serving at the request of the Company as
a director, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. As used in this Agreement,
the term “other enterprise” shall include (without limitation) employee benefit
plans and 


 

















 


administrative committees thereof, and the term “fines” shall include
(without limitations) any excise tax assessed with respect to any employee
benefit plan.


 


2.                                       Expenses.  As used in this Agreement, the term “Expenses”
shall include, without limitation, damages, judgments, fines, penalties,
settlements and costs, attorneys’ fees and disbursements and costs of
attachment or similar bonds and
investigations, which are reasonably incurred in connection with investigating,
defending, being a witness or participating in as a party (including any
appeal) or preparing to defend in connection with any Claim, any federal,
state, local or foreign taxes imposed on the Indemnitee as a result of the
actual or deemed receipt of any payments under this Agreement, and any expenses
of establishing a right to indemnification under this Agreement.


 


3.                                       Enforcement.  If a claim or request under this Agreement is
not paid by the Company, or on its behalf, within thirty (30) days after a
written claim or request has been received by the Company, the Indemnitee may
at any time thereafter bring suit against the Company to recover the unpaid
amount of the claim or request and if successful in whole or in part, the
Indemnitee shall be entitled to be paid also the Expenses of prosecuting such
suit. The Company shall have the right to recoup from the Indemnitee the amount
of any item or items of Expenses theretofore paid by the Company pursuant to
this Agreement, to the extent such Expenses are not reasonable in nature or
amounts; provided, however, that the Company shall have the burden of proving
such Expenses to be unreasonable. The burden of proving that the Indemnitee is
not entitled to indemnification for any other reason shall be upon the Company.


 


4.                                       Subrogation.  In the event of payment under this Agreement,
the Company shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee, who shall execute all papers required and
shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to
bring suit to enforce such right.


 


5.                                       Exclusions.  The Company shall not be liable under this
Agreement to pay or advance any Expenses:


 


(a)                                  to the extent
that payment is actually made to the Indemnitee under a valid, enforceable and
collectible insurance policy;


 


(b)                                 to the extent
that the Indemnitee is indemnified and actually paid otherwise than pursuant to
this Agreement;


 


(c)                                  if a judgment
or other final adjudication establishes that Indemnitee’s actions or omissions
to act were material to the cause of action so adjudicated and constitute (i) a
violation of the criminal law, unless the Indemnitee had reasonable cause to
believe his or her conduct was lawful and had no reasonable cause to believe
his or her conduct was unlawful; (ii) a transaction from which the
Indemnitee derived an improper personal benefit; (iii) in the case of a
director, a circumstance under which the liability provisions of Section 607.0834
of the Florida Business Corporation Act are applicable; or (iv) willful
misconduct or a conscious disregard for the best interests of the Company in a 


 


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proceeding by or in the right of the Company to procure a judgment in
its favor or in a proceeding by or in the right of a shareholder;


 


(d)                                 for a
disgorgement of profits made from the purchase and sale by the Indemnitee of
securities pursuant to Section 16(b) of the Securities Exchange Act
of 1934 and amendments thereto or similar provisions of any state statutory law
or common law;


 


(e)                                  for any Claim
initiated or brought by Indemnitee, prior to a Change in Control (as defined
below), against the Company or any director or officer of the Company except
for an action to enforce or interpret this Agreement or for a Claim that the
Company has joined in or consented to the initiation of such Claim;


 


(f)                                    to the extent
that, a court determines that, with respect to an action or claim instituted by
the Indemnitee to enforce or interpret this Agreement, the action or claim was
not in good faith or was frivolous;


 


(g)                                 to the extent
that the claim is for an amount paid in a settlement without the Company’s
consent; and


 


(h)                                 for any
judgment, fine or penalty which the Company is prohibited by applicable law
from paying as indemnity or for any other reason.


 


A
“Change in Control” shall be deemed to have occurred if (i) any “person”
(as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “1934 Act”, or any “affiliate” (as such
term is used in Rule 12b-2 of the 1934 Act) thereof, or a trustee or other
fiduciary holding securities under an employee benefit plan of the Company, is
or becomes the “beneficial owner” (as defined in Rule 13d-3 under the 1934
Act), directly or indirectly, of securities of the Company representing 25% or
more of the total voting power of any class of Voting Securities (as
hereinafter defined) represented by the Company’s then outstanding Voting
Securities, (ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of Directors of the
Company and any new director whose election by the Board of Directors or
nomination for election by the Company’s shareholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a
majority thereof, or (iii) the shareholders of the Company approve a
merger or consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 75% of the total voting power of any class of voting
securities represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
the shareholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially all
the·Company’s assets.


 


6.                                       Indemnification
of Expenses of Successful Party.  Notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee has been successful on the merits 


 


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or otherwise in defense of any Claim or in defense of any claim, issue
or matter therein, including dismissal without prejudice, Indemnitee shall be
indemnified against any and all Expenses incurred in connection therewith.


 


7.
                                    Partial
Indemnification.  If the
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the Expenses, but not, however, for the
total amount thereof, the Company shall nevertheless indemnify the Indemnitee
for the portion of such Expenses to which the Indemnitee is entitled.


 


8.                                       No Presumption. For purposes
of this Agreement, the termination of any Claim, action, suit or proceeding, by
judgment, order, settlement (whether with or without court approval) or upon a
plea of nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have a particular
belief or that a court has determined that indemnification is not permitted by
applicable law.


 


9.                                       Advance of
Expenses. Expenses incurred by the Indemnitee in connection
with any Claim, except the amount of any settlement, shall be paid by the
Company in advance upon request of the Indemnitee that the Company pay such
Expenses. The Indemnitee hereby undertakes to repay to the Company the amount
of any Expenses theretofore paid by the Company to the extent that it is
ultimately determined that such Expenses were not reasonable or that the
Indemnitee is not entitled to indemnification. Indemnitee’s obligation to repay
the Company shall be unsecured and no interest shall be charged thereon.


 


10.                                 Settlements
Without Consent. The Company shall not be liable to indemnify
Indemnitee under this Agreement for any amounts paid in settlement of any Claim
effected without its written consent. The Company shall not settle any Claim
for which the Company has assumed the defense (with Indemnitee’s written
consent) in any manner which would impose any penalty on Indemnitee without
Indemnitee’s written consent.  Neither
the Company nor Indemnitee will unreasonably withhold their respective consent
to any proposed settlement.


 


11.                                 Notice of Claim.  The Indemnitee, as a condition precedent to
his or her right to be indemnified under this Agreement, shall give to the
Company notice in writing as soon as practicable of any claim made against him
or her for which indemnity will or could be sought under this Agreement. Notice
to the Company shall be given at its principal office and shall be directed to
the Corporate Secretary (or such other address as the Company shall designate
in writing to the Indemnitee); notice shall be deemed received if sent by
prepaid mail properly addressed, the date of such notice being the date
postmarked. In addition, the Indemnitee shall give the Company such information
and cooperation as it may reasonably require and as shall be within the
Indemnitee’s power.


 


12.                                 Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Confirmation of
execution by electronic transmission of a facsimile signature page shall
be binding upon any party so confirming.


 


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13.                                 Indemnification
Hereunder Not Exclusive. 
Nothing herein shall be deemed to diminish or otherwise restrict the Indemnitee’s right to indemnification under any provision·of
the Articles of Incorporation or Bylaws of the Company and amendments thereto
or under law.


 


14.                                 Nondisclosure
of Payments.  Except as
expressly required by the federal securities or other applicable laws, neither
party shall disclose any payments under this Agreement without the prior
approval of the other. Any payments to the Indemnitee required to be disclosed
shall, unless otherwise required by law, be described only in proxy or
information statements relating to special and/or annual meetings of the
Company’s shareholders, and the Company shall afford the Indemnitee the
reasonable opportunity to review all such disclosures and, if requested, to
explain in such statement any mitigating circumstances regarding the events
reported.


 


15.                                 Severability.  If any provision of this Agreement or any
other agreement entered into pursuant to this Agreement is contrary to,
prohibited by or deemed invalid under applicable law or regulation, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited or invalid, but the remainder of this Agreement shall not be
invalidated thereby and shall be given full force and effect so far as
possible. If any provision of this Agreement may be construed in two or more
ways, one of which would render the provision invalid or otherwise voidable or
unenforceable and another of which would render the provision valid and
enforceable, such provision shall have the meaning which renders it valid and
enforceable.


 


16.                                 Coverage.  The provisions of this Agreement shall apply
with respect to the Indemnitee’s service as a director or officer of the
Company prior to the date of this Agreement and with respect to all periods of
such service after the date of this Agreement, even though the Indemnitee may
have ceased to be a director or officer of the Company.


 


17.                                 Binding Effect. All of the
terms and provisions of this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by the parties and their respective
administrators, executors, legal representatives, heirs, successors and
permitted assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Company. The Company shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or otherwise) to
all, substantially all or a substantial part, of the business and/or assets of
the Company, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. This Agreement shall continue in effect
regardless of the termination, for any or no reason, of any employment
agreement or employment relationship with the Company.


 


18.                                 Notice. All notices,
requests, consents and other communications required or permitted under this
Agreement shall be in writing and shall be (as elected. by the person giving
such notice) hand delivered by messenger or courier service, transmitted by
fax, or mailed by registered or certified mail (postage prepaid), return receipt
requested, addressed to:


 


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If to the Company:


 


NuCo2 Inc.


2800 SE Market Place


Stuart, Florida 34997


Attn: Chief Executive Officer


 


With
a copy to:


 


Gunster, Yoakley & Stewart, P.A.


777 South Flagler Drive


Suite 500 East·


West Palm Beach, FL 33401


Attn: Michael V. Mitrione, Esq.


 


If
to Indemnitee, to Indemnitee’s last address shown on the records of the Company;


 


or
to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on
the date delivered if by personal delivery; (b) on the date of
transmission with confirmed answer back if by fax; and (c) on the date
upon which the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be, if
mailed.


 


19.                                 Third Parties.  Unless expressly stated in this Agreement to
the contrary, nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons other than the parties to this Agreement and their respective
administrators, executors, other legal representatives, heirs, successors and
permitted assigns. Nothing in this Agreement is intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of subrogation
or action over or against any party to this Agreement.


 


20.                                 Governing Law.  This Agreement and all transactions
contemplated by this Agreement shall be governed by, and construed and enforced
in accordance with, the internal laws of the State of Florida without regard to
principles of conflicts of laws.


 


21.                                 Amendments.  The provisions of this Agreement may not be
amended, supplemented, waived or changed orally, but only by a writing signed
by both parties and making specific reference to this Agreement.


 


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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and signed as of the day and year first above written.


 


 


	
   

  	
  NuCo2 Inc.

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Indemnitee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: