0000947871-01-500810.txt : 20011010
0000947871-01-500810.hdr.sgml : 20011010
ACCESSION NUMBER: 0000947871-01-500810
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 3
FILED AS OF DATE: 20011004
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: NUCO2 INC /FL
CENTRAL INDEX KEY: 0000947577
STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-CHEMICALS & ALLIED PRODUCTS [5160]
IRS NUMBER: 650180800
STATE OF INCORPORATION: FL
FISCAL YEAR END: 0630
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-46469
FILM NUMBER: 1752247
BUSINESS ADDRESS:
STREET 1: 2800 S E MARKET PLACE
CITY: STUART
STATE: FL
ZIP: 34997
BUSINESS PHONE: 5612211754
MAIL ADDRESS:
STREET 1: 2820 SE MARKET PLACE
CITY: STUART
STATE: FL
ZIP: 34997
FORMER COMPANY:
FORMER CONFORMED NAME: FOWLER CARBONICS INC
DATE OF NAME CHANGE: 19951108
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: BOC GROUP INC
CENTRAL INDEX KEY: 0000839898
STANDARD INDUSTRIAL CLASSIFICATION: []
IRS NUMBER: 131600079
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
BUSINESS ADDRESS:
STREET 1: 575 MOUNTAIN AVENUE
CITY: MURRAY HILL
STATE: NJ
ZIP: 07974
BUSINESS PHONE: 9086652400
MAIL ADDRESS:
STREET 1: 575 MOUNTAIN AVENUE
CITY: MURRAY HILL
STATE: NJ
ZIP: 07974
SC 13D/A
1
sch13da_100401.txt
AMENDMENT NO. 2
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
SCHEDULE 13D/A
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 2)
NAME OF ISSUER: NUCO2 Inc.
TITLE OF CLASS OF SECURITIES: Common Stock, $.001 par value per share
CUSIP NUMBER: 629428103
NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND
COMMUNICATIONS:
The BOC Group, Inc. The BOC Group plc c/o Jim Blake, Esq. General Counsel, The
BOC Group, Inc. 575 Mountain Avenue Murray Hill, New Jersey 07974 Facsimile
Number: (908) 771-4803
DATE OF EVENT WHICH REQUIRES FILING: October 1, 2001
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box.[ ]
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss.240.13d-7(b) for other
parties to whom copies are to be sent.
Page 1 of 11
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 2 of 11
NAME OF REPORTING PERSON: The BOC Group plc SS OR IRS IDENTIFICATION NUMBER OF
ABOVE PERSON: N/A
1. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) [ ] (b) [X]
2. SEC USE ONLY:
3. SOURCE OF FUNDS: WC
4. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e):
Yes [ ] No: [X]
5. CITIZENSHIP OR PLACE OF ORGANIZATION: England
6. SOLE VOTING POWER: 0
7. SHARED VOTING POWER: 1,809,319
8. SOLE DISPOSITIVE POWER: 0
9. SHARED DISPOSITIVE POWER: 1,809,319
10. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 1,809,319
11. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
Yes [ ] No: [X]
12. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 19.98% of the Common
Stock of the Issuer (18.8% of the total voting power of the Issuer after
accounting for the outstanding shares of 8% Cumulative Convertible
Preferred Stock of the Issuer, which votes on an "as converted" basis with
the holders of the Common Stock, voting as a single class on all matters
that the holders of the Common stock are entitled to vote upon).
13. TYPE OF REPORTING PERSON: CO
Page 3 of 11
NAME OF REPORTING PERSON: The BOC Group, Inc.
SS OR IRS IDENTIFICATION NUMBER OF ABOVE PERSON: 13-1600079
1. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) [ ] (b) [x]
2. SEC USE ONLY:
3. SOURCE OF FUNDS: WC
4. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e):
Yes [ ] No [X]
5. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
6. SOLE VOTING POWER: 0
7. SHARED VOTING POWER: 1,809,319
8. SOLE DISPOSITIVE POWER: 0
9. SHARED DISPOSITIVE POWER: 1,809,319
10. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 1,809,319
11. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
Yes [ ] No: [X]
12. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 19.98% of the Common
Stock of the Issuer (18.8% of the total voting power of the Issuer after
accounting for the outstanding shares of 8% Cumulative Convertible
Preferred Stock of the Issuer, which votes on an "as converted" basis with
the holders of the Common Stock, voting as a single class on all matters
that the holders of the Common stock are entitled to vote upon).
13. TYPE OF REPORTING PERSON: CO
Page 4 of 11
This Amendment No. 2 to Schedule 13D amends that certain Schedule 13D
originally filed March 2, 1999 with the Securities and Exchange Commission and
amended December 27, 2000 (such Schedule, as so amended, being the "Schedule
13D").
Item 2 Identity and Background
-----------------------
Item 2 of the Schedule 13D is hereby amended and supplemented by adding
the following:
The persons listed in numbers 1 and 2 below are the persons filing the
Schedule 13D:
1. a. The BOC Group plc ("BOC PLC"), a public limited company organized
under the laws of England and Wales.
b. Chertsey Road, Windlesham
Surrey, GU20 6HJ
England
Information regarding the directors and executive officers of BOC PLC
is set forth on Schedule I attached hereto, which Schedule is incorporated
herein by reference.
2. a. The BOC Group, Inc. ("BOC Delaware"), a corporation incorporated
under the laws of the State of Delaware, United States of
America.
b. 575 Mountain Avenue, Murray Hill, New Jersey 07974 USA.
Information regarding the directors and executive officers of BOC
Delaware is set forth on Schedule II attached hereto, which Schedule is
incorporated herein by reference.
Item 3 Source and Amount of Funds or Other Consideration
-------------------------------------------------
Item 3 of the Schedule 13D is hereby amended and supplemented by adding
the following:
The reporting persons purchased 298,208 shares (the "Shares") of common
stock of the Issuer, $.001 par value per share ("Common Stock") at an aggregate
purchase price of $4,100,360. The Shares were acquired directly from Mr. Edward
M. Sellian in a private transaction for cash paid out of
Page 5 of 11
working capital, pursuant to a stock purchase agreement, dated October 1, 2001,
between Mr. Sellian and BOC Delaware (the "Stock Purchase Agreement"), which is
is attached as an exhibit hereto.
Item 4 Purpose of Transaction
----------------------
Item 4 of the Schedule 13D is hereby amended and supplemented by adding
the following to the end of Item 4:
The reporting persons purchased the Shares for investment purposes.
(a) The reporting persons have no current plans or proposals which would
relate to or result in any of the actions specified in clauses (a)
through (j) of Item 4 of Schedule 13D. However, the reporting persons
from time to time intend to review their investment in the Issuer on
the basis of various factors, including the Issuer's business,
financial condition, results of operations and prospects, general
economic and industry conditions and the securities markets in general
and those for the Issuer's securities in particular, as well as the
business of the reporting persons and other developments and other
investment opportunities. Based upon such review, the reporting persons
will take such actions in the future as they may deem appropriate in
light of the circumstances existing from time to time.
Item 5 Interest in Securities of Issuer
--------------------------------
Item 5 of the Schedule 13D is hereby amended in its entirety to read as
follows:
1. BOC Delaware
(a) BOC Delaware is the joint beneficial owner of 1,809,319 shares of
Common Stock (1,409,319 shares of Common Stock and warrants to purchase
400,000 shares of Common Stock, which are currently exercisable at
$17.00 per share), representing 19.98% of the Common Stock of the
Issuer (18.8% of the total voting power of the Issuer after accounting
for the outstanding shares of 8% Cumulative Convertible Preferred Stock
of the Issuer ("Preferred Stock"), which votes on an "as converted
basis" with the holders of the Common Stock, voting as a single class
on all matters that the holders of the Common Stock are entitled to
vote upon). The calculation of this percentage is based upon the number
of shares of Common Stock of the Issuer
Page 6 of 11
disclosed by the Issuer to BOC Delaware on September 26, 2001 and the
number of shares of Preferred Stock outstanding as disclosed in the
Issuer's most recently filed annual report on Form 10-K.
(b) BOC Delaware is an indirect wholly owned subsidiary of BOC PLC and
therefore shares with BOC PLC the power to vote and dispose of all of
the 1,409,319 shares of the owned Common Stock and all of the 400,000
shares of Common Stock underlying the warrants referred to above.
(c) Except as described herein, there have been no transactions by BOC
Delaware in securities of the Issuer in the past 60 days.
(d) No one other than BOC Delaware and BOC PLC is known to have the right
to vote or the power to direct the receipt of dividends from, or the
proceeds of the sale of, the shares in Common Stock (including the
shares of Common Stock issuable upon exercise of the warrants referred
to above) beneficially owned by the reporting persons.
(e) Not applicable.
2. BOC PLC
(f) BOC PLC is the joint beneficial owner of 1,809,319 shares of Common
Stock (1,409,319 shares of Common Stock and warrants to purchase
400,000 shares of Common Stock, which are currently exercisable at
$17.00 per share), representing 19.98% of the Common Stock of the
Issuer (18.8% of the total voting power of the Issuer after accounting
for the outstanding shares of Preferred Stock, which votes on an "as
converted basis" with the holders of the Common Stock, voting as a
single class on all matters that the holders of the Common Stock are
entitled to vote upon). The calculation of this percentage is based
upon the number of shares of Common Stock of the Issuer disclosed by
the Issuer to BOC Delaware on September 26, 2001 and the number of
shares of Preferred Stock outstanding as disclosed in the Issuer's most
recently filed annual report on Form 10-K.
Page 7 of 11
(g) BOC PLC is the ultimate parent entity of BOC Delaware and therefore
shares with BOC Delaware the power to vote and dispose of all of the
1,409,319 shares of the owned Common Stock and all of the 400,000
shares of Common Stock underlying the warrants referred to above.
(h) Except as described herein, there have been no transactions by BOC PLC
in securities of the Issuer in the past 60 days.
(i) No one other than BOC Delaware and BOC PLC is known to have the right
to vote or the power to direct the receipt of dividends from, or the
proceeds of the sale of, the shares in Common Stock (including the
shares of Common Stock issuable upon exercise of the warrants referred
to above) beneficially owned by the reporting persons.
(j) Not applicable.
Item 6 Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
Item 6 of the Schedule 13D is hereby amended and supplemented by adding
the following:
On October 1, 2001, pursuant to the Stock Purchase Agreement, BOC
Delaware purchased 298,208 shares of Common Stock at an aggregate purchase price
of $4,100,360. The Shares were acquired directly from Mr. Sellian in a private
transaction for cash paid out of working capital.
Item 7 Material to be Filed as Exhibits
Item 7 of the Schedule 13D is hereby amended and supplemented by adding
the following:
Exhibit 2: Stock Purchase Agreement, dated October 1, 2001 between
Edward M. Sellian and BOC Delaware.
Exhibit 3: Joint filing agreeement.
Page 8 of 11
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete, and correct.
THE BOC GROUP PLC
By: /s/ Nick Deeming
--------------------------------------
Date: October 4, 2001 Name: Nick Deeming
-------------------- Title: Legal Director and Company Secretary
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete, and correct.
THE BOC GROUP PLC
By: /s/ James P. Blake
--------------------------------------
Date: October 4, 2001 Name: James P. Blake
-------------------- Title: Vice President & General Counsel
Page 9 of 11
Schedule I
Directors and Executive Officers of The BOC Group plc
1. Board of Directors
Sir David John
Anthony Eric Isaac
Julia Baddeley
Richard S. Grant
Harry Groome
Chris O'Donnell
Goran Lundberg
J.Howard Macdonald
Rene Medori
Dr. Raj Rajagopal
John L. Walsh
2. Executive Officers
Executive Director of the Company: A E Isaac
Chief Executive - Process Gas Solutions R S Grant
Group Finance Director R Medori
Chief Executive - BOC Edwards K Rajagopal
Chief Executive - Industrial & Special Products J L Walsh
Chief Executive - Asia J Bevan*
Group Legal Affairs Director N Deeming*
Group Corporate Relations Director S Dempsey*
Group Information Management Director P Dew*
Group Human Resources Director R Lourey*
Group Business Development Director G Sedgwick*
Page 10 of 11
Schedule II
Directors and Executive Officers of The BOC Group, Inc.
1. Board of Directors
James Blake
Richard S. Grant
Anthony Eric Isaac
Rene Medori
J. Kent Masters
2. Executive Officers
President Anthony Eric Isaac
Vice President Richard S. Grant
Vice President Brian P. Walsh
Treasurer David L. Brooks
Assistant Treasurer James A. Boyce
Vice President and Secretary James Blake
Vice President and Chief Financial Officer Robert Wowk
Assistant Secretary Deborah G. Rosenthal
Assistant Secretary Patricia E. Fleming
Assistant Secretary Dean A. Bertolino
Assistant Secretary Donna C Boehme
Assistant Secretary David L. Rae
Assistant Secretary Paul E. Stolzer
Page 10 of 11
EX-2
3
ex2tosc13d_100201.txt
STOCK PURCHASE AGREEMENT
Exhibit 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), is made and entered
into this 1st day of October, 2001, by and between THE BOC GROUP, INC., a
Delaware corporation ("Buyer"), and EDWARD M. SELLIAN, an individual with an
address at 6794 SE Isle Way, Stuart, Florida 34996 (the "Seller").
R E C I T A L:
Seller desires sell to Buyer and Buyer desires to purchase from Seller,
on the terms and subject to the conditions set forth in this Agreement, Seller's
Two Hundred, Ninety Eight Thousand, Two Hundred and Eight (298,208) shares (the
"Common Shares") of common stock, par value $0.001 per share, in NUCO2 Inc., a
Florida corporation (the "Company"), in exchange for the Common Share Purchase
Price (as defined herein) and such other agreements, obligations, and
consideration as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the parties hereto agree as follows:
ARTICLE 1 PURCHASE OF COMMON SHARES
1.1 Purchase of Common Shares. Upon the terms and subject to the
conditions of this Agreement, Buyer agrees to purchase the Common Shares for the
Common Share Purchase Price from Seller, and Seller agrees to sell the Common
Shares to Buyer at the Closing.
1.2 Purchase Price for Common Shares. The purchase price of the Common
Shares, representing a per share price of $13.75, shall be Four Million, One
Hundred Thousand, Three Hundred and Sixty Dollars ($4,100,360) (the "Common
Share Purchase Price").
ARTICLE 2 THE CLOSING
2.1 Closing. The closing of the transaction (the "Closing") shall occur
at the offices of Buyer on the date hereof or at such other date and/or place as
may be mutually agreed upon by
1
the parties (the "Closing Date"). All component parts of the transaction shall
be deemed to occur simultaneously on the Closing Date.
2.2 Closing Deliveries by Seller to Buyer. At the Closing, Seller shall
deliver or cause to be delivered to Buyer a certificate evidencing the Common
Shares being purchased by the Buyer, registered in the name of Buyer, duly
endorsed for transfer or accompanied by properly executed stock powers, with all
signatures guaranteed by a commercial bank or a member of the New York Stock
Exchange acceptable to Buyer, and accompanied by all requisite transfer stamps.
2.3 Delivery by Buyer to Seller. At the Closing, Buyer shall deliver or
cause to be delivered to Seller the Common Share Purchase Price.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as of the Closing Date as
follows:
3.1 Authority; Enforceability. Seller has all requisite power and
authority, and has taken all action necessary to execute and deliver this
Agreement, to consummate the transactions contemplated hereby, and to perform
its obligations hereunder. This Agreement has been duly executed and delivered
by Seller and constitutes legal, valid, and binding obligations of Seller
enforceable against Seller in accordance with their respective terms, except as
the enforcement thereof may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or transfer, or other laws
affecting the enforcement of creditors' rights generally from time to time in
effect or by general principles of equity.
3.2 No Conflicts. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and compliance with the
terms hereof do not violate or conflict with in any respect, or result in a
breach under, any contract, license, order or law applicable to Seller.
3.3 No Consents. No consent of approval of, or filing with, any court
or other person is required to be obtained or made by or with respect to Seller
in connection with the execution,
2
delivery, and performance of this Agreement or the consummation by Seller of the
transactions contemplated hereby.
3.4 Ownership of Shares; Title. All of the Common Shares are lawfully
owned of record and beneficially by Seller, free and clear of any lien or other
limitation or restriction (including any restriction on the right to vote, sell,
or otherwise dispose of the Common Shares, subject to applicable securities
laws). Seller has the full legal right, power, and authority to vote such Common
Shares. Such Shares are not subject to any voting trust agreement or other
contract, agreement, arrangement, commitment, option, proxy, right of first
refusal, or understanding, including any contract restricting or otherwise
relating to the voting, dividend rights or disposition of the Common Shares.
3.5 Litigation. There is no action, suit, investigation, arbitration or
administrative or other proceeding pending, or threatened against or affecting
Seller before any court or arbitrator or any governmental authority which, if
determined or resolved adversely to Seller, could reasonably be expected to,
individually or when considered together with all such other matters, adversely
affect the right or ability of Seller to consummate the transactions
contemplated by this Agreement; and Seller knows of no valid basis for any such
action, suit, investigation or proceeding.
3.6 Disclosure. (a) No representation or warranty by Seller contained
herein or in any statement or certificate furnished or to be furnished to Buyer
pursuant hereto or connection with this Agreement or the transactions
contemplated hereby contains or will contain any untrue statement of material
fact or omits or will omit any statement of material fact to make the statements
contained herein or therein not misleading or accurate, true, correct, and
complete.
(b) There is no fact known to Seller that has not been disclosed to
Buyer orally or in writing that materially affects or, insofar as Seller can
reasonably foresee, will materially affect, the Company, its financial
condition, or results of operations.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as of the Closing Date as
follows:
3
4.1 Authority; Enforceability. Buyer is a corporation duly
incorporated, validly existing, and in good standing under the laws of the State
of Delaware. Buyer has all requisite corporate power and authority, and has
taken all corporate action necessary to execute and deliver this Agreement, to
consummate the transactions contemplated hereby, and to perform its obligations
hereunder. This Agreement has been duly executed and delivered by Buyer and
constitutes legal, valid, and binding obligations of Buyer enforceable against
Buyer in accordance with their respective terms, except as the enforcement
thereof may be limited by applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or transfer, or other laws affecting the
enforcement of creditors' rights generally from time to time in effect or by
general principles of equity.
4.2 No Conflicts. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and compliance with the
terms hereof do not violate or conflict with in any respect, or result in a
breach under, any contract, license, order or law applicable to Buyer.
4.3 No Consents. No consent of approval of, or filing with, any court
or other person is required to be obtained or made by or with respect to Buyer
in connection with the execution, delivery and performance of this Agreement or
the consummation by Buyer of the transactions contemplated hereby.
4.4 Litigation. There is no action, suit, investigation, arbitration or
administrative or other proceeding pending, or, to Buyer's knowledge, threatened
against or affecting Buyer before any court or arbitrator or any governmental
authority which, if determined or resolved adversely to Buyer, could reasonably
be expected to, individually or when considered together with all such other
matters, adversely affect the right or ability of Buyer to consummate the
transactions contemplated by this Agreement; and Buyer knows of no valid basis
for any such action, suit, investigation or proceeding.
4.5 Accredited Investor (a) Buyer is purchasing for its own account,
and not with a view to the resale or distribution of the Common Shares or any
part thereof, and Buyer is prepared to bear the economic risk of retaining the
Common Shares for an indefinite period, all
4
without prejudice, however, to the right of Buyer at any time lawfully to sell
or otherwise to dispose of all or any part of the Common Shares; (b) Buyer is an
"accredited investor" (as defined in Rule 501 of Regulation D promulgated under
The Securities Act of 1933, as amended (the "Securities Act"); and (c) Buyer is
experienced in evaluating and investing in securities, and understands that the
Common Shares will be restricted securities, and that a legend to that effect
shall be placed on the Common Shares.
4.6 Securities Act Compliance. Buyer understands that the Seller has
not registered or qualified the Common Shares under the Securities Act or any
applicable state securities laws, and Buyer agrees that the Common Shares shall
not be sold or offered for sale without registration under the Securities Act or
any applicable state securities laws or the availability of an exemption
therefrom.
ARTICLE 5 POST-CLOSING COVENANTS
5.1 General. In case at any time after the Closing any further action
is necessary to carry out the transactions contemplated by this Agreement, each
of the parties hereto will take such further action (including the execution and
delivery of such further instruments and documents) as the other party
reasonably may request, all at the sole cost and expense of the requesting
party.
5.2 Securities Filings. Each party shall promptly file all federal and
state securities filings that may be necessary pursuant to this Agreement.
ARTICLE 6 GENERAL PROVISIONS
6.1 Indemnification. The parties to this Agreement will indemnify,
defend, and hold harmless the other party against and in respect of any and all
claims, demands, actions, costs, damages, losses, expenses, obligations,
liabilities, and causes of actions, including costs of court and reasonable
attorneys' fees, that the other party incurs or suffers, which arise, result
from, or relate to any breach of any of such party's representations,
warranties, covenants, or agreements under this Agreement.
5
6.2 Amendment and Waiver. No amendment or waiver of any provision of
this Agreement shall in any event be effective unless the same shall be in
writing and signed by the parties hereto, and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
6.3 Applicable Law. This Agreement will be governed by, and construed
in accordance with, the laws of the State of New Jersey applicable to contracts
executed in and to be performed entirely within New Jersey.
6.4 Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
6.5 Parties in Interest. This Agreement shall bind and inure to the
benefit of the parties named herein and their respective heirs, successors, and
assigns.
6.6 Expenses. Each party hereto will pay its own expenses in connection
with the transactions contemplated hereby.
6.7 Entire Transaction. This Agreement constitutes the entire
understanding between the parties with respect to the transaction contemplated
hereby and supersedes all other agreements and understandings between the
parties, both written and oral.
6.8 Headings. The Article and other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
6.9 Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under any present or future law, and if the
rights or obligations of the parties under this Agreement would not be
materially and adversely affected thereby, such provision shall be fully
separable, and this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part hereof,
the remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid, or
6
unenforceable provision or by its severance herefrom, and, in lieu of such
illegal, invalid, or unenforceable provision, there shall be added automatically
as a part of this Agreement a legal, valid, and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible,
and the parties hereto request the court to whom disputes relating to this
Agreement are submitted to reform the otherwise illegal, invalid or
unenforceable provision in accordance with this Paragraph 6.9.
6.10 Waiver. No waiver by any party of the performance of any
provision, condition, or requirement herein shall be deemed to be a waiver of,
or in any manner release the other party from, performance of any other
provision, condition, or requirement herein, nor deemed to be a waiver of, or in
any manner release the other party from, future performance of the same
provision, condition, or requirement; nor shall any delay or omission by any
party to exercise any right hereunder in any manner impair the exercise of any
such right accruing to it thereafter.
6.11 No Third-Party Beneficiaries. Nothing contained in this Agreement
shall be construed to give any person other than Buyer, any successor to Buyer,
and the Seller any legal or equitable right, remedy or claim under or with
respect to this Agreement.
6.12 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be sent by registered or certified mail,
postage prepaid, overnight courier or by facsimile as follows:
If to Seller, to:
Edward M. Sellian
6794 SE Isle Way
Stuart, Florida 34996
Facsimile Number: 561-225-2206
If to Buyer, to:
The BOC Group, Inc.
575 Mountain Avenue
Murray Hill, New Jersey 07974
Attention: General Counsel
Facsimile Number: 908-771-4803
7
with a copy to:
The BOC Group, Inc.
575 Mountain Avenue
Murray Hill, New Jersey 07974
Attention: Vice President
Facsimile Number: 908-464-2234
Any party may change its address for receiving notice by written notice given to
the others named above.
6.14 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.14.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
THE BOC GROUP, INC.
By:
-----------------------------
Name:
Title:
EDWARD M. SELLIAN
--------------------------------
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EX-3
4
ex3_100401.txt
JOINT FILING AGREEMENT
Exhibit 3
JOINT FILING AGREEMENT
The undersigned hereby agree that the Statement on Schedule 13D dated
October 1, 2001 (the "Statement") with respect to shares of common stock, $0.001
par value per share of NUCO2 Inc. is, and any amendments thereto executed by
each of us shall be, filed on behalf of each of us pursuant to and in accordance
with the provisions of Rule 13(d)-1(k) under the Securities Exchange Act of
1934, as amended, and further agree that this Joint Filing Agreement be included
as an exhibit to the Statement. Each of the undersigned agrees to be responsible
for the timely filing of the Statement and any amendments thereto, and for the
completeness and accuracy of the information concerning itself contained
therein. This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the 4th day of October 2001.
THE BOC GROUP INC.
By: /s/ James P. Blake, Esq.
-----------------------------------------
Name: James P. Blake, Esq.
Title: General Counsel
BOC GROUP PLC
By: /s/ Nick Deeming
-----------------------------------------
Name: Nick Deeming
Title: Legal Director and Company Secretary
1