Exhibit
10.1


 


EMPLOYMENT AGREEMENT


 


THIS EMPLOYMENT AGREEMENT
(the “Agreement”), effective as of the 28th day of May 2008, by and between
NUCO2 INC., a Florida corporation having its
principal executive office at 2800 S.E. Market Place, Stuart, Florida 34997
(hereinafter referred to as the “Corporation”), and MICHAEL DeDOMENICO,
residing at 6841 SE Harbor Circle, Stuart, Florida 34996 (hereinafter referred
to as the “Executive”).


 


RECITALS


 


WHEREAS, the Corporation
desires to employ Executive and to have the benefit of his skills and services,
and Executive desires to be employed with the Corporation, on the terms and
conditions set forth herein.


 


NOW, THEREFORE, in
consideration of the mutual promises, terms, covenants and conditions set forth
herein, and the performance of each, the parties hereto, intending legally to
be bound, hereby agree as follows:


 


ARTICLE 1 - EMPLOYMENT TERMS AND DUTIES


 


1.1           The Corporation hereby agrees to employ the Executive
and the Executive agrees to work for the Corporation as its Chief Executive
Officer (the “CEO”); as such, he will be responsible for the overall management
of the Corporation’s business.  The
Executive shall serve as and perform the duties of CEO of the Corporation
during the Term (defined hereinafter) of this Agreement.  In addition, the Executive shall be a member
and Chairman of the Board of Directors of the Corporation (the “Board”) and of
the Board of Directors of NUCO2 Parent Inc., a Delaware corporation (“Parent”)
during the Term of this Agreement.


 


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1.2           The Executive agrees to devote his full business time
during regular business hours to working for the Corporation and performing the
aforesaid duties and such other duties as shall from time to time be assigned
to him by the Board consistent with his position as CEO.  During the Term of his employment hereunder,
the Executive shall have no interest in, or perform any services during regular
business hours for any other company, whether or not such company is
competitive with the Corporation, except that this prohibition shall not be
deemed to apply to passive investments in businesses not competitive with the
business of the Corporation or to investments of 5% or less of the outstanding
stock of public companies whose stock is traded on a national securities
exchange or in the over-the-counter market. 
For purposes of this Paragraph 1.2, a “passive investment” shall be
deemed to mean investment in a business which does not require or result in the
participation of the Executive in the management or operations of such business
except during times other than regular business hours and which does not
interfere with his duties and responsibilities to the Corporation.  Nothing contained herein shall limit the
right of the Executive to make speeches, write articles or participate in
public debate and discussions in and by means of any medium 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 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 


 


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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”).


 


ARTICLE 2 - COMPENSATION


 


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 $530,000
per annum or such greater rate as may from time to time be authorized by the
Board, payable in accordance with the Corporation’s regular payment schedule
for its employees.


 


(b)           During the Term of this Agreement and subject to the
provisions hereof, the Executive shall be entitled, at the end of each fiscal
year of the Corporation (each June 30 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 by the Board as follows:


 


(i)            If the Corporation achieves
its estimated 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, the Executive shall receive a bonus consisting of a cash payment
of no less than 70% of Base Salary (the “Target Cash Bonus”) as determined by
the Board;


 


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(ii)           In the event that the
Corporation exceeds its estimated EBITDA and other operating and financial
criteria as projected in the Corporation’s business plan established by the
Board for such fiscal year, the Executive shall receive a bonus consisting of a
cash payment in excess of the Target Cash Bonus, the exact amount of which to
be determined by the Board in accordance with applicable bonus plan criteria.  Any 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 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)            The Executive shall receive $25,000 per year to cover
the costs of the Executive’s long-term disability insurance, automobile lease
and other incidentals, plus a gross up for any income taxes incurred in
connection therewith.


 


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(g)           On the date of this Agreement, Parent shall award to
the Executive an option to purchase 4,700 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);


 


(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, 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 


 


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of the Corporation, as determined in good faith by the
Board, 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 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%) 


 


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of (i) his then current annual Base Salary and (ii) his
Target Cash Bonus for the then current fiscal year, 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
the Executive under this Paragraph 3.2(a) shall thereafter be paid in twelve
(12) equal monthly installments, without interest, commencing one month
following the Executive’s death.


 


(b)           In the event that the employment of the Executive
shall be terminated by reason of the Executive becoming permanently
incapacitated, then, as additional consideration for his past services to the
Corporation, he shall receive one hundred percent (100%) of (i) his then
current annual Base Salary and (ii) his Target Cash Bonus for the then current
fiscal year, each 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 and not paid as of the date of such termination,
or (ii) any Target Cash Bonus.


 


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(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, two (2) years current Base Salary in six equal
quarterly installments during the one and one-half (1-1/2) years 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 for a period of either twelve (12) months or one and one-half
(1-1/2) years following the termination of employment (to coincide with the
period Executive is receiving cash compensation pursuant to this Article 3) in
all medical insurance and related benefits 


 


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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.


 


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


 


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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.


 


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.


 


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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


 


(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 


 


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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.


 


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 


 


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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.


 


(b)           A lump sum payment of an amount equal to the greater
of (i) two (2) times the sum
of (y) the Executive’s then current annual Base Salary and (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) one million eight hundred thousand dollars
($1,802,000), 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(c)) and the Treasury regulations
thereunder).  The parties agree that the
amount of $1,060,000 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.


 


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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 Board in
any given year as compared to the directors who constituted the
Board at the beginning of such year, and such replacement shall not have been
approved by the Board, 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 a Change of Control occurs prior to, but within two
years of, the expiration of the Term as set forth in Paragraph 1.5 hereof, the
Term shall be extended, without


 


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any further action by the Corporation, the Board or
the Executive, until the second anniversary of the date on which the Change of
Control occurred.


 


(c)           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:


 


(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


 


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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(c)(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(c), all determinations required to be
made under this Paragraph 5.2(c), 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


 


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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(c), 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(c).  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


 


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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,


 


(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


 


18

















 


provisions of this part (iii) of
this Paragraph 5.2(c), 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 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(c), 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


 


19














 


of part (iii) of this
Paragraph 5.2(c)) 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(c), 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, upon or
after, the occurrence of a Change of Control, if one or more of the following
events (each, an “Event”)
occurs:


 


(a)                                  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;


 


(b)                                 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;


 


(c)                                  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;


 


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(d)                                 a reduction by
the Corporation in the Executive’s Base Salary, or material change in Executive’s
bonus structure;


 


(e)                                  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; or


 


(f)                                    a change of the
principal work location in excess of a fifty (50) mile radius from 2800 S.E.
Market Place, Stuart, Florida.


 


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 


 


21

















 


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(c),
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.


 


22

















 


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


 


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


 


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


 


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.


 


23

















 


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


 


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


 


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


 


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


 


	
   

  	
  NUCO2 INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eric M. Wechsler

  
	
   

  	
  Name:

  	
  Eric M. Wechsler

  
	
   

  	
  Title:

  	
  General Counsel and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Michael DeDomenico

  
	
   

  	
  MICHAEL
  DeDOMENICO