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EXHIBIT 4.12
BLUE RHINO CORPORATION
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
OCTOBER 25, 2000
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TABLE OF CONTENTS
Page
1. Definitions.............................................................1
2. Registration Requirement................................................2
3. Company Registration....................................................3
4. Registration Procedures.................................................3
5. Registration Expenses...................................................4
6. Underwriting............................................................5
7. Indemnification.........................................................5
8. Rule 144 Reporting......................................................7
9. Miscellaneous...........................................................9
Exhibit A List of Investors
Exhibit B QuickShip Stockholders
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this
"Agreement") is made and entered into as of the 25th day of October, 2000 by and
among Blue Rhino Corporation, a Delaware corporation (the "Company"), the
investors listed on Exhibit A attached hereto (each an "Investor" and together
the "Investors"), and the former stockholders (the "QuickShip Stockholders") of
QuickShip, Inc., a Delaware corporation, listed on Exhibit B attached hereto.
RECITALS
A. The Investors have acquired 1,716,667 shares in the aggregate of the Series A
Convertible Preferred Stock, par value $.001 per share (the "Series A Preferred
Stock"), of the Company, pursuant to that certain Series A Preferred Stock
Purchase Agreement dated as of September 7, 2000 (the "Purchase Agreement").
B. The Company, Gold Bank and the QuickShip Stockholders have entered into that
certain Agreement and Plan of Reorganization dated as of the date hereof (the
"Merger Agreement"), pursuant to which the QuickShip Stockholders have acquired
466,666.33 shares of the Series A Preferred Stock and the Warrant (as defined
below).
C. The Company and Gold Banc Corporation, Inc., a Kansas corporation and a
QuickShip Stockholder, have entered into that certain Subscription Agreement
dated as of the date hereof (the "Subscription Agreement"), pursuant to which
Gold Banc has acquired 666,666.67 shares of the Series A Preferred Stock.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and other consideration, the receipt and adequacy of which hereby is
acknowledged, the parties agree as follows:
The Company, the Investors and the QuickShip Stockholders
hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein shall
have the meanings given such terms in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Common Stock" means the Company's Common Stock, par value
$.001 per share.
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"Holder" or "Holders" means each Investor and each QuickShip
Stockholder and any transferee of Registrable Securities who, pursuant to
Section 9 below, is entitled to registration rights hereunder.
"Person" means an individual or a corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"Registrable Securities" means the shares of Common Stock
issued or issuable upon (i) conversion of or with respect to the Series A
Preferred Stock, (ii) as a dividend on the Series A Preferred Stock, and any
shares of the Company's capital stock issued with respect to (i) or (ii) as a
result of any stock split, stock dividend, recapitalization, exchange or similar
event or otherwise, and (iii) exercise of the Warrant.
"register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act and the automatic
effectiveness, or the declaration or ordering of effectiveness, of such
registration statement or document.
"Restricted Securities" means the securities of the Company
required to bear the legend set forth in Section 10 hereof (or any similar
legend).
"Securities Act" means the Securities Act of 1933, as amended.
"Warrant" means the Warrant to Purchase Common Stock dated as
of the date hereof issued to Xxxxxx X. Xxxxxxxxxxx.
2. Registration Requirement.
(a) Filing and Effectiveness Obligations. The Company shall
prepare and file with, the Securities and Exchange Commission ("SEC") a
registration statement on Form S-3 (or if Form S-3 is unavailable to the
Company, such other form as is available) for an offering to be made on a
continuous basis pursuant to a "shelf" registration statement under Rule 415
promulgated under the Securities Act (the "Initial Registration Statement")
which shall cover the issuance of all Registrable Securities then issuable on
conversion of all of the Series A Preferred Stock issued on September 7, 2000
and the date hereof, and may also register the sale of shares requested to be
sold by parties who, prior to the date hereof, have contractual rights with the
Company to register the sale of shares, provided that the number of shares of
Registrable Securities to be included in the Initial Registration Statement
shall not be reduced unless all other securities of the Company are first
entirely excluded from such registration. The registration statement shall
state, to the extent permitted by Rule 416 promulgated under the Securities Act
that it covers such indeterminate number of shares of Common Stock as may be
required to effect conversion of the Series A Preferred Stock to prevent
dilution resulting from stock splits, stock dividends or similar events, or by
reason of changes in the conversion price in accordance with the terms of the
Certificate of Designation. The Company shall use its best efforts to cause the
Initial Registration Statement to be declared effective under the Securities Act
as promptly as possible after the filing thereof, but in any event no later than
September 7, 2001, and to take all
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commercially reasonable steps to keep such Initial Registration Statement
continuously effective under the Securities Act, until the date when all
Registrable Securities covered by such Initial Registration Statement have been
sold or may be sold without volume restrictions pursuant to Rule 144, without
regard to whether the holder of the Registrable Securities is an affiliate of
the Company, as determined by counsel to the Company pursuant to a written
opinion letter, addressed to the Holders and the Company's transfer agent to
such effect (the "Effectiveness Period"). If (i) the Initial Registration
Statement is not declared effective on or before September 7, 2001, (ii) the
Company fails to cover all of the Common Stock issuable upon conversion of the
Series A Preferred Stock in the Initial Registration Statement, or (iii) at any
time during the Effectiveness Period sales of Registrable Securities cannot be
made by a Holder for any reason within the control of the Company, except when
sales are restricted by the Company's xxxxxxx xxxxxxx policies approved by the
Company's Board of Directors, then the Company shall, from such time and for so
long as the triggering event described in item (i), (ii), or (iii) continues to
exist, pay an annual dividend on the Series A Preferred Stock in an amount equal
to 15% of the Original Issue Price, which remedy shall be in addition to any
other remedy available to a Holder at law or in equity.
(b) Underwritten Offering. At any time when the Initial
Registration Statement is not effective (during any period in which a
registration statement is required to be effective during the Effectiveness
Period), the holders of a majority of the Series A Preferred Stock may make a
written request that the Company effect a registration of Registrable Securities
and distribute the Registrable Securities covered by their request by means of
an underwriting.
3. Company Registration. If the Company proposes to register any of its
capital stock under the Securities Act, whether for its own account or for the
account of shareholders other than the Holders (other than a registration on
Form S-8 relating solely to the sale of securities to participants in a Company
stock plan or a registration on Form S-4, or the registration on Form S-3 filed
by the Company in September 2000 that included 562,285 shares of Common Stock
issued in connection with the acquisitions of Uniflame, Inc. and International
Propane Products, Inc.), the Company shall, each such time, promptly give each
Holder written notice of such registration. Upon the written request of any
Holder given within twenty (20) days after mailing of such notice by the
Company, the Company shall, subject to the provisions of Section 6, use its best
efforts to cause a registration statement covering all of the Registrable
Securities that each such Holder has requested to be registered to become
effective under the Securities Act and to be included in any underwriting
involved therein.
4. Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) prepare and file with the SEC a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for (i) at least 120 days
or until the distribution described in the registration statement has been
completed; provided, however, that such 120-day period shall be extended for a
period of time equal to the period the Holder refrains from selling any
securities included in such
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registration at the request of an underwriter of securities of the Company; and
(ii) in the case of any registration of Registrable Securities under Section
2(a) during the Effectiveness Period;
(b) furnish to the Holders participating in such registration
and to the underwriters of the securities being registered such number of copies
of the registration statement, preliminary prospectus, final prospectus and such
other documents as such Holders or underwriters may reasonably request in order
to facilitate the public offering of such securities;
(c) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement or to applicable anti-fraud
provisions;
(d) use its best efforts to register and qualify the
securities covered by such registration statement under such other applicable
securities or blue sky laws, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or jurisdictions
unless the Company is already subject to service in such jurisdiction and except
as may be required by the Securities Act;
(e) cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed;
(f) provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration;
(g) enter into an underwriting agreement in form reasonably
necessary to effect the offer and sale of Registrable Securities; and
(h) notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of circumstances then existing.
5. Registration Expenses. All Registration Expenses (exclusive of
underwriting discounts and commissions) incurred in connection with any
registration, qualification or compliance pursuant to this agreement shall be
borne by the Company, including the reasonable expenses of one special counsel
for the Holders not to exceed $25,000. "Registration Expenses" shall mean all
expenses incurred by the Company in complying with Sections 2, 3 and 4 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration.
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6. Underwriting.
(a) Underwriting of Requested Registrations. The right of any
Holder to registration pursuant to Section 2(b) or 3 shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities to be registered in the underwriting to the
extent requested (unless otherwise mutually agreed by the Company and a majority
in interest of the Holders) and to the extent provided herein. A Holder may
elect to include in such underwriting all or a part of the Registrable
Securities such Holder holds.
(b) Market Limitations upon Requested Registrations.
Notwithstanding any other provision of this Section 6, if the managing
underwriter advises the Company in writing that market conditions require a
limitation of the number of shares to be underwritten, then the Company shall
include in such registration (i) if the registration includes an underwritten
primary registration on behalf of the Company, first, the securities the Company
proposes to sell, second, the Registrable Securities requested to be included in
such registration and any securities requested to be included therein by other
Persons with contractual registration rights, pro rata on the basis of the
number of shares requested to be included therein by such Holders and Persons
and third, other securities requested to be included therein and (ii) if the
registration is an underwritten secondary registration, first, the Registrable
Securities requested to be included in such registration and any securities
requested to be included therein by other Persons with contractual registration
rights, pro rata on the basis of the number of shares requested to be included
therein by such Holders and Persons and second, other securities requested to be
included therein.
(c) Limitation on Piggyback Rights. Notwithstanding Section 3,
the Holders shall not be entitled to include the Registrable Securities in any
registration instituted by the Company pursuant to a contractual registration
right in existence on September 7, 2000 if the Company advises the Holders that,
in the opinion of counsel to the Company, inclusion of the Registrable
Securities is not permitted under the terms of such existing contractual
registration rights, provided, however, that the Company shall use commercially
reasonable efforts to allow the Holders to be included in such registration.
(d) Withdrawal. If any Holder of Registrable Securities
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the managing underwriter and the
other Holders. The Registrable Securities and/or other securities so withdrawn
shall also be withdrawn from registration; provided, however, that if by the
withdrawal of such Registrable Securities a greater number of Registrable
Securities held by other Holders may be included in such registration (up to the
maximum of any limitation imposed by the underwriters), then the Company shall
offer to all Holders who have included Registrable Securities in the
registration the right to include additional Registrable Securities on the same
terms as otherwise applicable to the underwriting.
7. Indemnification.
(a) The Company will indemnify each Holder, each of its
officers, directors and partners, legal counsel, accountants and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
with respect to which registration, qualification or
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compliance has been effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls any underwriter within the meaning of
Section 15 of the Securities Act, against all expenses, claims, losses, damages
and liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, not misleading, or any violation by the Company of the
Securities Act or any rule or regulation promulgated thereunder applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and will
reimburse each such Holder, each of its officers, directors and partners and
each person controlling such Holder, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by such Holder or
underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers and directors
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company, such Holders, such directors, officers, underwriters or control
persons for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by such Holder and stated to be specifically for use therein;
provided, however, that the obligations of such Holder hereunder shall not apply
to amounts paid in settlement of any such claims, losses, damages or liabilities
(or actions in respect thereof) if such settlement is effected without the
consent of such Holder and provided that the obligations of each such Holder
hereunder shall be limited to an amount equal to the net proceeds after expenses
and commissions to such Holder from Registrable Securities sold in such
offering.
(c) Each party entitled to indemnification under this Section
7 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the
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"Indemnifying Party") promptly after such Indemnified Party has actual knowledge
of any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim or any litigation
resulting therefrom, provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or litigation, shall be approved by the
Indemnified Party (whose approval shall not be unreasonably withheld), and the
Indemnified Party may participate in such defense at such party's expense; and
provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Agreement, except to the extent, but only to the extent, that the
Indemnifying Party's ability to defend against such claim or litigation is
impaired as a result of such failure to give notice.
No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
8. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the SEC which may at any time permit the sale
of the Series A Preferred Stock to the public without registration, the Company
agrees to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) File with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); and
So long as any of the Holders own Series A Preferred Stock or
other securities issued pursuant to an exemption under Section 5 of the
Securities Act furnish to Holders of Registrable Securities forthwith upon
written request, a written statement by the Company as to its compliance with
the reporting requirements of Rule 144, and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company as such may
reasonably request in availing itself of any rule or regulation of the SEC
allowing such Holder to sell any such securities without registration.
9. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each Holder. The registration rights contained
in this Agreement may be assigned at any time, and from time to time, by a
Holder: (a) if the Holder is a partnership, to any constituent partner or
retired partner of a Holder, (b) to any affiliate (as that term is defined in
Rule 405 promulgated by the SEC under the Securities Act) of a Holder, (c) to
any officer, director, principal shareholder or member thereof, where such
Holder is a corporation or limited liability company, (d) to the spouse,
children, grandchildren or spouse of such children or grandchildren of any
Holder or to trusts for the benefit of any Holder or such persons where the
Holder is a natural person, (e) to any person who acquires at least 500,000
shares of Registrable Securities, provided
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that the Company is given written notice that such transfer has occurred, or (f)
as otherwise required by law. A Holder shall deliver notice of any transfer
under this Section 9 to the Company.
10. Restrictions on Transferability.
(a) The Restricted Securities shall not be transferable except
upon the conditions specified in this Agreement, which conditions are intended
to ensure compliance with the provisions of the Securities Act. Each Holder of
Restricted Securities will cause any proposed transferee of the Restricted
Securities held by such Holder, other than a transferee acquiring such
securities in connection with a registered offering covering such disposition,
to agree to take and hold such Restricted Securities subject to the provisions
and upon the conditions specified in this Agreement.
(b) Each certificate representing (i) the Series A Preferred
Stock, (ii) any other securities issued in respect of the Series A Preferred
including upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall (unless otherwise permitted by the
provisions of Section 10(c) below) be stamped or otherwise imprinted with a
legend in the following form (in addition to any legend required under
applicable securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
THESE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE
AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR
TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER
OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
Each Holder consents to the Company's making a notation on its records
and giving instructions to any transfer agent of the Series A Preferred
Stock in order to implement the restrictions on transfer established in
this Section 10(b). The Company shall be obligated to reissue promptly
unlegended certificates at the request of any Holder thereof if the Holder
shall have obtained an opinion of counsel at such Holder's expense (which
counsel may be counsel to the Company) reasonably acceptable to the Company
to the effect that the securities proposed to be disposed of may lawfully
be so disposed of without registration, qualification or legend.
(c) Notice of Proposed Transfers. The Holder of each
certificate representing Restricted Securities by acceptance thereof agrees to
comply in all respects with the provisions of this Section 10(c). Prior to any
proposed transfer of any Restricted Securities, unless there is in effect a
registration statement under the Securities Act covering the proposed transfer,
the Holder thereof shall give written notice to the Company of such Holder's
intention to effect such transfer. Each such notice shall describe the manner
and circumstances of the proposed transfer in sufficient detail, and shall, if
the Company reasonably requests, be accompanied (except in
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transactions in compliance with Rule 144) by either (i) a written opinion of
legal counsel who shall be reasonably satisfactory to the Company, addressed to
the Company and reasonably satisfactory in form and substance to the Company's
counsel, to the effect that the proposed transfer of the Restricted Securities
may be effected without registration under the Securities Act, or (ii) a "No
Action" letter from the SEC to the effect that the transfer of such securities
without registration will not result in a recommendation by the staff of the SEC
that action be taken with respect thereto, whereupon the Holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the Holder to the
Company; provided, however, that no opinion or "No Action" letter need be
obtained with respect to a transfer to (A) a partner, active or retired, of a
Holder of Restricted Securities, (B) the estate of any Holder of Registrable
Securities, (C) an "affiliate" of a Holder of Restricted Securities as that term
is defined in Rule 405 promulgated by the SEC under the Securities Act, (D) if
to a corporation, to its stockholders, (E) if to a limited liability company, to
its members or former members or (F) the spouse, children, grandchildren or
spouse of such children or grandchildren of any Holder or to trusts for the
benefit of any Holder or such persons, if the transferee agrees to be subject to
the terms hereof. Each certificate evidencing the Restricted Securities
transferred as above provided shall bear the appropriate restrictive legend set
forth in Section 10(b) above, except that such certificate shall not bear such
restrictive legend if the transferee provides an opinion of counsel as provided
in Section 3 or in the opinion of counsel for the Company such legend is not
required in order to establish compliance with any provisions of the Securities
Act.
11. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a
Holder of any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any of
its subsidiaries has, as of the date hereof, nor shall the Company or any of its
subsidiaries, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
Except as disclosed to the Investors on the Schedule of Exceptions to the
Purchase Agreement, neither the Company nor any of its subsidiaries has
previously entered into any agreement granting any registration rights with
respect to any of its securities to any Person. This Agreement, together with
the Purchase Agreement, the Merger Agreement, the Subscription Agreement and the
Warrant, contain the entire understanding of the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, including without limitation the
Registration Rights Agreement dated September 7, 2000 among the Company and the
Investors.
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(c) Amendments and Waivers. Any provision of this Agreement
may be amended, waived or modified only upon the written consent of (i) the
Company and (ii) the holders of a majority of the Registrable Securities. Any
amendment or modification effected in accordance with this Section shall be
binding upon each Holder of Registrable Securities and the Company; provided,
however, that no such amendment or modification shall be effective with respect
to any Holder that is adversely affected by such action in its status as such in
a manner substantively different from the manner in which all other Holders are
affected and that withholds its written consent thereto. Any Holder may waive
any of its rights or the Company's obligations hereunder with respect to such
Holder without obtaining the consent of any other person only by a writing
signed by such Holder. Any amendment, waiver or modification not effected in
accordance with this Section shall be void.
(d) Notices Any notice required or permitted hereunder will be
given in writing and will be conclusively deemed effectively given upon personal
delivery, or five days after deposit in the United States mail, by certified
mail, postage prepaid, return receipt requested, addressed (i) if to the
Company, as set forth below the Company's name on the signature page of this
Agreement, and (ii) if to an Investor or a QuickShip Stockholder, at such
Investor's or QuickShip Stockholder's address as set forth in the stock records
of the Company, or at such other address as the Company or the Investor or
QuickShip Stockholder may designate by ten (10) days' advance written notice to
the other parties hereto.
(e) Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
(f) Termination of Registration Rights. The registration
rights granted pursuant to this Agreement shall terminate as to any Holder, at
such time as such Holder is able to sell all Registrable Securities held by it
in a single three-month period pursuant to Rule 144 promulgated under the
Securities Act.
(g) Governing Law. This Agreement and the legal relations
between the parties arising hereunder shall be governed by and interpreted in
accordance with the laws of the State of Delaware.
(h) Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that
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they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Registration Rights Agreement as of the date first written above.
COMPANY:
BLUE RHINO CORPORATION
By: /s/ Xxxxx X. Xxxx
----------------------------------------------
Name: Xxxxx X. Xxxx
Title: President and Chief Executive Officer
PURCHASERS:
XXXXXX, XXXXXXX STRATEGIC PARTNERS FUND II A, L.P.
By: Xxxxxx, Xxxxxxx Strategic Partners II, LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Managing Member
XXXXXX, XXXXXXX STRATEGIC PARTNERS FUND II B, L.P.
By: Xxxxxx, Xxxxxxx Strategic Partners II, LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Member
/s/ Xxxxx X. Xxxx
--------------------------------------------------
Xxxxx X. Xxxx
15
/s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------------
Xxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxxxxxxx
GOLD BANC CORPORATION, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Xxxxxxx X. Xxxxx, President
2
16
EXHIBIT A
Xxxxxx, Xxxxxxx Strategic Partners Fund II A, X.X.
Xxxxxx, Xxxxxxx Strategic Partners Fund II B, L.P.
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxxxxx
Xxxx Xxxxxxx
17
EXHIBIT B
Xxxxxx X. Xxxxxxxxxxx
Gold Banc Corporation, Inc.
