EXHIBIT 10.16
SHAREHOLDERS' AGREEMENT
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THIS SHAREHOLDERS' AGREEMENT (this "Agreement"), dated as of December 1,
1994, is by and between BLUE RHINO CORPORATION, a Delaware corporation (the
"Corporation"), the persons and entities identified on Schedule 1 attached
hereto (the "Investors"), and the persons identified on Schedule 2 attached
hereto (the "Management Stockholders").
RECITALS
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A. The Investors have agreed to purchase the Series A Preferred
Securities (as defined in Section 1 below) pursuant to that certain Series A
Securities Purchase Agreement dated as of an even date herewith (the "Securities
Purchase Agreement") provided that the parties hereto enter into this Agreement.
B. To induce the Investors to purchase the Series A Preferred Securities,
the Corporation and the Management Stockholders deem it desirable to enter into
this Agreement.
AGREEMENTS
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In consideration of the recitals and the mutual promises, covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions.
"Commission" means the Securities and Exchange Commission.
"Common Shares" means the shares of Common Stock which have not been sold
to the public (i) pursuant to a registration statement declared effective by the
Commission, or (ii) pursuant to Rule 144 promulgated by the Commission under the
Securities Act. For the purposes of this Agreement, any Holder will be deemed to
own, in addition to any Common Shares such Holder actually owns, any Common
Shares which would then be directly or indirectly issuable upon the conversion
or exercise (whether nor not then convertible or exercisable) of any other
Securities owned by such Holder and such other Securities shall be deemed to
represent such Common Shares.
"Common Stock" means the Common Stock, par value $0.001 per share, of the
Corporation.
"Holder" is any holder (or deemed holder) of Securities who is a party to
this Agreement (or becomes a party hereto pursuant to Section 14 hereof) or is a
successor or assign or subsequent holder contemplated by Section 19 hereof.
"Management Securities" means, at any time, (i) Securities then held by
Management Stockholders, (ii) Securities that were on or after the date hereof
held by a Management Stockholder but are then held by (A) a successor or assign
of such Management Stockholder (other than an Investor) or (B) a subsequent
Holder (other than an Investor), and (iii) Securities that were issued as, or
upon conversion or exercise of other Securities issued as, a dividend or other
distribution with respect to or in replacement of other Management Securities
and are then held by (1) a Management Stockholder, (2) a successor or assign of
such Management Stockholder (other than an Investor) or (3) a subsequent Holder
(other than an Investor); provided, however, that Management Securities shall
not include any securities which have been sold to the public pursuant to a
registration statement declared effective by the Commission or pursuant to Rule
144 promulgated by the Commission under the Securities Act. For purposes of this
Agreement, the calculation of the number of Management Securities (to the extent
such Securities are not Common Shares) shall be determined on an as-converted
basis into Common Shares.
"New Securities" means (i) any capital stock of the Corporation or any
other securities or other obligations of the Corporation, including any equity
or equity like profit participation rights, whether now authorized or not, (ii)
any rights, options, or warrants to purchase any such capital stock or rights,
or to purchase any securities of any type whatsoever that are, or may become,
convertible into any such capital stock, and (iii) any securities of any type
whatsoever that are, or may become convertible into any such capital stock or
rights; provided, however that "New Securities" will not include (A) securities
offered to the public pursuant to a registration statement under the Securities
Act, (B) options or securities issued to, or securities issued upon exercise of
options issued to officers, directors or employees of the Corporation, (C)
securities issued upon conversion of the Series A Preferred Shares or the
Warrants, (D) securities issued pursuant to the Securities Purchase Agreement,
(E) securities issued in connection with the acquisition of another corporation
by the Corporation by merger, purchase of all or substantially all of such other
corporation's assets, or by other reorganization whereby the Corporation ends up
owning, directly or indirectly, greater than 50% of the voting power of such
corporation, and/or (F) Common Stock issued upon exercise of options outstanding
on the date hereof.
"Person" means a natural person, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization or other entity, or a governmental entity or any department, agency
or political subdivision thereof.
"Platinum" means Platinum Venture Partners I, L.P., a Delaware limited
partnership.
"Qualified Public Offering" has the meaning ascribed to it in Section 4.7
of ARTICLE FOURTH of the Certificate of Incorporation of the Corporation, as in
effect on the date hereof.
"Securities" means Common Shares or shares of capital stock or other
securities directly or indirectly exercisable for or convertible into Common
Shares; provided, however, that Securities shall not include any securities
which have been sold to the public pursuant to a registration statement declared
effective by the Commission or pursuant to Rule 144 promulgated by the
Commission under the Securities Act.
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"Securities Act" means the Securities Act of 1933, as amended.
"Series A Preferred Securities" means, at any time, (i) Series A Preferred
Shares, (ii) Common Shares issued upon conversion of Series A Preferred Shares,
(iii) Warrants, (iv) Common Shares issued upon exercise of the Warrants and (v)
Common Shares or other securities issued upon the conversion or in replacement
of other Series A Preferred Securities. For purposes of this Agreement, the
calculation of the number of Series A Preferred Securities shall be determined
on an as-converted (or as exercised) basis into Common Shares.
"Series A Preferred Shares" means those shares of Series A Convertible
Participating Preferred Stock, par value $0.01 per share, of the Corporation
duly issued and outstanding on the date hereof.
"Warrants" means the warrants to purchase Common Stock issued pursuant to
the Securities Purchase Agreement and any securities issued as a dividend or
other distribution with respect to or in replacement of the Warrants.
"Subsidiary" means, with respect to any corporation, any Person of which
securities or other ownership interests representing more than 50% of the
ordinary voting power are, at the time as of which any determination is being
made, owned or controlled by such corporation or one or more Subsidiaries of
such corporation or by such corporation and one or more Subsidiaries of such
corporation.
2. Disposition of Securities. No Holder of Management Securities will
transfer, sell, convey, exchange or otherwise dispose of (herein referred to as
a "disposition" or "to dispose of") such Management Securities, except in a
Qualified Public Offering or in compliance with Sections 3 and 4 or as permitted
by Section 5.
3. Right of First Refusal - Outstanding Management Securities.
(a) Subject to the limitations of Section 2 hereof, if any Holder of
Management Securities (the "Selling Management Holder") desires to dispose
of any Management Securities in compliance with this Section, such Selling
Management Holder will first give written notice (the "Management
Securities Offer Notice") to the Corporation which will, within five (5)
days of the date of receipt of such notice (the "Management Securities
Offer Date"), send or deliver a copy of the Management Securities Offer
Notice to each Holder of Series A Preferred Securities, to the effect that
such Selling Management Holder wishes to dispose of such Management
Securities (the "Offered Management Securities"), stating the price at and
other material terms upon which such Selling Management Holder wishes to
dispose of such Management Securities and offering to sell such Management
Securities, in whole or in part (the "Management Securities Offer"), first
to the Corporation, and then to the Holders of Series A Preferred
Securities, pursuant to this Section, at the price and on the other
material terms described in the Management Securities Offer Notice.
(b) The Corporation may accept the Management Securities Offer in
whole or indicate a desire to accept the Management Securities Offer in part by
giving written
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notice thereof to the Selling Management Holder within fifteen (15) days
of the Management Securities Offer Date.
(c) In the event the Corporation does not accept the Management
Securities Offer in its entirety as provided in subsection (b) of this
Section, the Corporation will promptly notify in writing the Holders of the
Series A Preferred Securities, and such Holders may elect to purchase, pro
rata according to the number of Common Shares that would be held on an as-
converted basis by each such Holder that wishes to purchase such
securities, or in such other proportions as such Holders may agree upon,
the Offered Management Securities with respect to which the Management
Securities Offer has not then been accepted by the Corporation, by giving
written notice to the Corporation and the Selling Management Holder within
thirty (30) days of the Management Securities Offer Date. For example,
assuming (for the purpose of this example only) (i) a Management
Stockholder desires to dispose of 100 Management Securities, (ii) the
Corporation purchases 10 of such Management Securities pursuant to
paragraph (b) of this Section 3, (iii) Platinum is deemed to hold 40 of the
100 Common Shares that would be held (or deemed to be held) by each Holder
of Series A Preferred Securities and (iv) all Holders of Series A Preferred
Securities wish to purchase such Management Securities, then Platinum would
be entitled to purchase 36 of the remaining 90 Management Securities
pursuant to this Section 3 and the other Holders of Series A Preferred
Securities would be entitled to purchase 54 Management Securities pro rata.
Similarly, assuming (for the purpose of this example only) (i) a Management
Stockholder desires as above to dispose of 100 Management Securities, (ii)
the Corporation purchases as above 10 of said Management Securities
pursuant to paragraph (b) of this Section 3, (iii) the Holders of 50 of the
100 Common Shares that would be held (or deemed to be held) by the Holders
of Series A Preferred Securities wish to purchase such Management
Securities, and (iv) Platinum holds 10 of such 50 Common Shares, then
Platinum would be entitled to purchase 18 of the remaining 90 Management
Securities hereunder and the other Holders of Series A Preferred Securities
who wish to purchase such Management Securities would be entitled to
purchase 72 Management Securities pro rata.
(d) In the event that the Management Securities Offer has not been
accepted in its entirety by the Corporation, or the other Holders of the
Series A Preferred Securities, or both in accordance with this Section, the
Selling Management Holder may dispose of all, and the Corporation and the
other Holders of the Series A Preferred Securities shall not be entitled to
purchase any of the Offered Management Securities, subject to the
provisions of Section 4, to one or more purchasers who each agree in
writing to be bound by the terms of this Agreement as a Management
Stockholder and a Holder of Management Securities, on substantially the
same terms stated in the Management Securities Offer Notice at any time up
to one hundred (100) days after the Management Securities Offer Date.
Thereafter, the provisions of this Section will again apply.
4. Take-Along.
(a) After satisfying the requirements of Section 3 a Management
Stockholder (the "Disposing Management Stockholder") may sell or transfer
Management Securities
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in a transaction other than a Qualified Public Offering only to a
transferee who purchases such Management Securities as part of a
transaction in which a pro rata portion (as hereinafter defined) of the
aggregate number of Securities being purchased by such transferee is being
purchased from each Holder of Series A Preferred Securities who chooses to
participate in such transaction. For purposes of the preceding sentence,
"pro rata portion" means, with respect to any Holder of Series A Preferred
Securities, the proportion equal to (a) the number of Common Shares held
(or deemed held) by such Holder of Series A Preferred Securities divided by
(b) the sum of (1) the number of Common Shares held (or deemed held) by all
Holders of Series A Preferred Securities who choose to participate in such
transaction and (2) the number of Common Shares held (or deemed held) by
the Disposing Management Stockholder. Before a Disposing Management
Stockholder accepts any offer for the sale of any Management Securities for
which this Section is to apply, such Disposing Management Stockholder shall
give written notice (the "Take-along Notice") to the Corporation (which
shall, within five (5) days of the date of receipt of such notice (the
"Take-along Notice Date"), send or deliver a copy of the Take-along Notice
to each Holder of Series A Preferred Securities), stating the material
terms of the offer. If a Holder of Series A Preferred Securities wishes to
participate in such sale, such Holder of Series A Preferred Securities will
give the Corporation and the Disposing Management Stockholder notice to
such effect within twenty (20) days of the Take-along Notice Date. For
example, assuming (for the purpose of this example only) (i) a Management
Stockholder who holds (or is deemed to hold) 60 Common Shares wishes to
dispose of 30 of such Common Shares, (ii) Platinum holds 40 of the 100
Common Shares held (or deemed held) by the Holders of participating Series
A Preferred Securities, (iii) the other participating Holders of Series A
Preferred Securities hold 60 of such 100 Common Shares, (iv), then Platinum
would be entitled to sell 7.5 Common Shares hereunder, the participating
Holders of Series A Preferred Securities would be entitled to sell 11.25
Common Shares hereunder, and the Management Stockholder would be entitled
to sell 11.25 Common Shares hereunder.
(b) In connection with any sale under this Section 4 in which Holders
of Series A Preferred Securities elect to participate, the total
consideration for any such transaction shall be allocated among the shares
being sold by the Disposing Management Stockholder and the Series A
Preferred Shares being sold such that an amount equal to the Liquidation
Value of the Series A Preferred Shares (as defined in the Corporation's
Certificate of Incorporation as in effect on the date hereof) being sold
shall first be paid with respect to such Series A Preferred Shares and any
remaining consideration shall be paid ratably for the Management Securities
being sold and the number of shares of Common Stock into which the Series A
Preferred Shares being sold are then convertible.
5. Permitted Transfers. Any Holder of Management Securities may transfer
such Management Securities without complying with Section 3 or Section 4, to
Permitted Transferees who consent in a writing delivered to the Corporation to
be bound by the terms of this Agreement as Management Stockholders. With respect
to any Holder of Management Securities, "Permitted Transferee" means the
Corporation, any other Management Stockholder, the spouse or lineal descendants
of such Holder, any trust for the benefit of such Holder or the benefit of the
spouse or lineal descendants of such Holder, any corporation or partnership in
which such Holder, the spouse and the lineal descendants of such Holder are the
direct and beneficial owners
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of all of the equity interests (provided such Holder, spouse and lineal
descendants agree in writing to remain the direct and beneficial owners of all
such equity interests), and the personal representative of such Holder upon such
Holder's death for purposes of administration of such Holder's estate or upon
such Holder's incompetency for purposes of the protection and management of the
assets of such Holder.
6. Pledges. No Holder of Management Securities will pledge or otherwise
grant a security interest in any Management Securities.
7. Confidentiality. Each Holder agrees to at all times hold in confidence
and keep secret and inviolate all of the Corporation's confidential information,
including, without limitation, all unpublished matters relating to the business,
property, accounts, books, records, customers and contracts of the Corporation
which such Holder may or hereafter come to know; provided, however, that any
Holder may disclose any such information which has otherwise entered the public
domain or as to which such Holder has obtained knowledge from sources other than
the Corporation or the executive officers or directors of the Corporation
(provided that such source is not bound by a confidentiality agreement with the
Corporation) or which it is required to disclose to any governmental authority
by law or subpoena or judicial process or in connection with a registered public
offering under the Securities Act or a sale to the public pursuant to Rule 144
promulgated by the Commission under the Securities Act or in a private sale
which is permitted or not prohibited hereunder; provided further, however, that
Platinum may disclose summary financial information and descriptive information
pertaining to the Corporation to its limited partners in its routine reports.
8. Board of Directors.
(a) Each of the Holders agrees to take all action necessary including,
without limitation, the voting of its shares of stock of the Corporation,
the execution of written consents, the calling of special meetings, the
removal of directors, the filling of vacancies on the Board of Directors,
the waiving of notice and the attending of meetings, so as to cause (i) the
number of members of the Board of Directors to be nine and (ii) the Board
of Directors of the Corporation to be at all times comprised of the
following persons:
(A) the Chief Executive Officer of the Corporation, who is Xxxxx
Xxxx as of the date hereof;
(B) the President of the Corporation, who is Xxxxxxxx Xxxxxxxx
as of the date hereof;
(C) the Vice Chairman of the Corporation, who is Xxxxxx
Xxxxxxxxxx as of the date hereof;
(D) the Chief Financial Officer of the Corporation, who is X. X.
Xxxxxxxx, III, as of the date hereof (in the event that any two or more
of the offices in clauses (A), (B), (C) and (D) of this Section 8(a)
are filled by one person or are vacant, then such other senior
executive officer(s) of the Corporation as the Holders of Common Shares
may designate);
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(E) four persons designated by the Holders of Series A Preferred
Securities, which four persons shall include two persons designated by
Platinum; and
(F) one person, who is not an employee or officer of the
Corporation or any of its Subsidiaries and who has significant
relevant industry experience, designated by a majority of the other
members of the Board of Directors.
(b) Notwithstanding the provisions of paragraph (a) of this Section,
the Holders of Series A Preferred Securities shall possess all of the
rights provided for in the Certificate of Incorporation of the Corporation,
as in effect on the date hereof, upon the occurrence of an Event of
Noncompliance (as defined therein) and the exercise of such rights shall
not violate the provisions of this Section.
(c) The Corporation shall hold quarterly meetings of the Board of
Directors.
9. Observation Rights. So long as Platinum or its nominee is a Holder of
Series A Preferred Securities:
(a) Platinum shall have the right to select, at any time and from
time to time, one representative (the "Representative") to attend and
observe each meeting of the Board of Directors and any other strategic
planning or similar type meeting of the Board of Directors or trade shows
or other similar events relating to the business of the Corporation and the
Corporation shall pay or cause to be paid on behalf of the Corporation the
reasonable out-of-pocket travel expenses incurred by such Representative in
connection with his or her attendance at such meetings or events;
(b) The Corporation shall give Platinum (i) at least 15 days' advance
notice of each regular meeting of the Board of Directors and such advance
notice as is reasonable under the circumstances to enable the
Representative to attend each special or emergency meeting of the Board of
Directors, (ii) on or prior to the date of each meeting of the Board of
Directors, all information given to the directors of the Corporation at or
in connection with such meeting, and (iii) as soon as available but in any
event not later than 45 days after each meeting of the Board of Directors,
copies of the minutes of such meeting. In the event that the Board of
Directors shall act by unanimous written consent in lieu of a meeting, the
Corporation shall give Platinum and the Representative a copy of such
written consent at least five business days prior to the earlier of the
adoption or effective date thereof, together with all information given to
the directors of the Corporation in connection with such action; provided,
however, that in the event immediate action is required to address an
emergency situation, the Corporation shall be in compliance with this
sentence if the Corporation shall send Platinum and the Representative a
copy of such written consent and information by telecopier at the same time
as such consent and information is sent to the members of the Board of
Directors for their review and signature.
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(c) The Corporation shall comply with all provisions of its by-laws
relating to meetings of the Board of Directors, including, without
limitation, those relating to notice and to the time and date of meetings
and action by written consent; and
(d) The Representative shall have the right (but not the obligation)
to consult with and advise the management of the Corporation at any time or from
time to time, by telephone or in person, on such matters relating to the
operation of the Corporation as the Representative shall deem appropriate
(including, without limitation, matters regarding capital expenditures,
acquisitions and management compensation).
10. Compensation Committee. The Board of Directors and the Corporation
will maintain a "Compensation Committee" which will be comprised of one director
designated by Platinum and two directors designated by the Holders of Common
Shares (the "Compensation Committee"). The Compensation Committee shall be
responsible for and have authority to establish the compensation of the
executive officers of the Corporation with the approval of the committee member
who is designated by Platinum.
11. Board Reimbursements. The Corporation shall reimburse all Persons
serving as directors of the Corporation for their reasonable out-of-pocket
expenses in connection with attending meetings of the Board of Directors and all
committees thereof and all reasonable expenses otherwise incurred in fulfilling
their duties as directors.
12. Right of First Refusal.
(a) Each Holder of Series A Preferred Securities shall have the right
of first refusal to purchase his, her or its proportionate number, or any
lesser number, of any New Securities for which the Corporation has received
a bona fide offer from a prospective purchaser and which the Corporation
proposes to sell and issue to such purchaser. Each Holder of Series A
Preferred Securities shall have rights of over-allotment such that, if any
Holder of Series A Preferred Securities fails to exercise his, her or its
rights hereunder to purchase his, her or its proportionate number of New
Securities, the Holders of Series A Preferred Securities may purchase the
non-purchasing Holder's portion on a pro rata basis within ten days from
the date on which they receive written notice that such non-purchasing
Holder has failed to exercise his, her or its right hereunder to purchase
his, her or its proportionate number. For purposes of this Section, a
Holder's "proportionate number" means the product obtained by multiplying
the number of New Securities proposed to be sold and issued by a fraction,
the numerator of which will be the number of Common Shares owned (or deemed
owned) by such Holder of Series A Preferred Securities and the denominator
of which will be the total number of Common Shares owned (or deemed owned)
by all Holders of Series A Preferred Securities. For purposes of this
Section, "pro rata" among the Holders of Series A Preferred Securities
means in proportion to the number of Common Shares owned (or deemed owned)
by such Holders of Series A Preferred Securities.
(b) In the event the Corporation receives a bona fide offer for the
purchase of New Securities from a prospective purchaser and the Corporation
proposes to sell and issue such New Securities, the Corporation will submit
to each Holder of Series A
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Preferred Securities written notice identifying the prospective purchaser
and describing the New Securities and the price and terms upon which the
Corporation would issue and sell the same, and setting forth the total
number of New Securities to be issued and sold and such Holder's
proportionate number. Each such Holder of Series A Preferred Securities
will have fifteen (15) days from the date of receipt of any notice to agree
to purchase his, her or its proportionate number or any lesser number of
such New Securities, for the price and upon the terms specified in the
notice by giving written notice to the Corporation and stating therein the
quantity of New Securities to be purchased. If two or more types of New
Securities are to be issued or New Securities are to be issued together
with other types of securities, including, without limitation, debt
securities, in a single transaction or related transactions, the rights to
purchase New Securities granted to Holders of Series A Preferred Securities
under this Section must be exercised to purchase all types of New
Securities and such other securities in the same proportion as such New
Securities and other securities are to be issued by the Corporation.
(c) In the event the Holders of Series A Preferred Securities fail to
exercise the right of first refusal within said 15-day period and after the
expiration of the 10-day period for the exercise of over-allotment rights
pursuant to subsection (a) above, with respect to all the New Securities,
the Corporation will have 90 days thereafter to sell or enter into a
binding and unconditional agreement (pursuant to which the sale of New
Securities covered thereby will be, and is, consummated within 90 days from
the date of said agreement) to sell the New Securities as to which such
Holders' right was not exercised, to the prospective purchaser identified
in, and at the price and upon the terms specified in, the Corporation's
notice. In the event the Corporation has not sold such New Securities
within said 90-day period (or sold and issued such new Securities in
accordance with the foregoing within 90 days from the date of said
agreement), the Corporation will not thereafter issue or sell any New
Securities to a prospective purchaser without first offering such New
Securities to the Holders of Series A Preferred Securities in the manner
provided above.
13. Execution. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered will be deemed an
original, and such counterparts together will constitute one instrument.
14. Subsequent Management Stockholders.
(a) The Corporation will not issue or sell any Securities to any
employee or officer of the Corporation who, after giving effect to such
issuance or sale, owns, directly or indirectly, one percent (1%) or more of
the outstanding Securities of the Corporation (on a fully diluted basis),
unless such employee or officer agrees in writing to be bound by the terms
of this Agreement as a Management Stockholder and a Holder of Management
Securities. Upon the delivery to the Corporation of such written consent,
such officer or employee shall be bound by and entitled to the benefits of
this Agreement in such capacity.
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15. Legend. The Corporation will stamp or imprint each certificate or
other instrument representing Securities, throughout the term of this Agreement,
with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
PROVISIONS, INCLUDING, AMONG OTHERS, RESTRICTIONS ON VOTING AND
TRANSFER, SET FORTH IN A CERTAIN SHAREHOLDERS' AGREEMENT DATED AS OF
DECEMBER 1, 1994, A COPY OF WHICH IS AVAILABLE AT THE PRINCIPAL OFFICE
OF BLUE RHINO CORPORATION."
16. Remedies. Each of the parties to this Agreement will be entitled to
enforce its rights under this Agreement specifically, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in its favor. The parties hereto agree and acknowledge
that money damages will not be an adequate remedy for any breach of the
provisions of this Agreement and that an party may in its sole discretion apply
to any court of law or equity of competent jurisdiction for specific performance
or injunctive relief (without the necessity of posting a bond) in order to
enforce or prevent any violations of the provisions of this Agreement.
17. Notices. Any notices desired, required or permitted to be given
hereunder shall be delivered personally or mailed, certified or registered mail,
return receipt requested, or delivered by overnight courier service, to the
following addresses, or such other addresses as shall be given by notice
delivered hereunder, and shall be deemed to have been given upon delivery, if
delivered personally, five days after mailing, if mailed, or one business day
after delivery to the overnight courier service, if delivered by overnight
courier service:
If to the Corporation, to:
Blue Rhino Corporation
000 Xxxxxxxxx Xxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxx, Chief Executive Officer
with a copy to:
House Law Firm
P.O. Drawer 26015
Winston-Salem, North Carolina 27114-6015
Attention: Don R. House, Esq.
If to the Holders of Management Securities; to the addresses set forth on
the stock record books of the Corporation.
If to the Holders of Series A Preferred Securities, to the addresses set
forth on the stock record books of the Corporation.
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With a copy to:
Xxxxxx Xxxxxx & Xxxxx
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
18. Amendments and Waivers. The provisions of this Agreement may be
amended upon the written agreement of the Corporation, the Holder or
Holders of two-thirds of the Series A Preferred Securities and the Holder
or Holders of a majority of the Management Securities. Any waiver, permit,
consent or approval of any kind or character on the part of any Holders of
any provision or condition of this Agreement must be made in writing and
shall be effective only to the extent specifically set forth in writing.
19. Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties
hereto, and each transferee of all or any portion of the Securities held by
the parties hereto, whether so expressed or not.
20. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
21. Governing Law. All questions concerning the construction,
validity and interpretation of, and the performance of the obligations
imposed by, this Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts made and
wholly to be performed in that state.
22. Termination of this Agreement. Except as otherwise provided
herein, this Agreement shall terminate upon the earlier of (a) the date on
which less then 10% of the Series A Preferred Securities at any time issued
shall remain outstanding or (b) the closing of a Qualified Public Offering.
23. References to Sections; Headings. References to Sections shall
be references to Sections in this Agreement, unless otherwise indicated.
Section headings are for reference only and shall not be given meaning in
interpreting this Agreement.
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This Shareholders' Agreement was executed as of the date first set forth
above.
Signature
CORPORATION:
BLUE RHINO CORPORATION
By: /s/ XXXXX XXXX
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Xxxxx Xxxx, Chief Executive Officer
INVESTORS:
PLATINUM VENTURE PARTNERS I, L.P.
By: PLATINUM VENTURE PARTNERS, INC.
By: /s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx, Vice President
/s/ XXXXXX X. XXXXXXXXXX
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Xxxxxx X. Xxxxxxxxxx
/s/ XXXXX X. XXXXXXXXXX
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Xxxxx X. Xxxxxxxxxx
/s/ XXXXX XXXXX
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Xxxxx Xxxxx
/s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
/s/ XXXXXX X. STEEL & XXXXXXXX XXXXX
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Xxxxxx X. Steel & Xxxxxxxx Xxxxx JTWROS
/s/ XXXXXX X. XXXXXXXXX
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Xxxxxx X. Xxxxxxxxx
/s/ XXX XXXXXX
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Xxx Xxxxxx
/s/ XXX XXXXXXX
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Xxx Xxxxxxx
/s/ XXXXXX X. XXXXXX
--------------------
Xxxxxx X. Xxxxxx
/s/ XXXXX XXXXXXX, XX.
----------------------
Xxxxx Xxxxxxx, Xx.
-12-
/s/ XXXXX XXXXXXX, XX.
----------------------
Xxxxx Xxxxxxx, Xx.
XXXXXXX, INC.
By: /s/ XXXXX XXXXXXXX
----------------------
Xxxxx Xxxxxxxx, Director
/s/ XXXXX XXXX XXXX
-------------------
Xxxxx Xxxx Xxxx
/s/ XXX XXXXXXX
---------------
Xxx Xxxxxxx
/s/ XXXXXXX XXXXXXX
-------------------
Xxxxxxx Xxxxxxx
/s/ XXXXXXX XXXXXXX
-------------------
Xxxxxxx Xxxxxxx
/s/ XXXXXX XXXXX
----------------
Xxxxxx Xxxxx
/s/ XXXXX XXXXXXX
-----------------
Xxxxx Xxxxxxx
/s/ XXXXX XXXXXXXXX
-------------------
Xxxxx Xxxxxxxxx
/s/ XXXXX XXXXXX
----------------
Xxxxx Xxxxxx
/s/ XXXXXXXXX XXXXXXXXXX
------------------------
Xxxxxxxxx Xxxxxxxxxx
XXXX XXXXXX BANK CUSTODIAN FBO
XXXXXX XXXXX XXX #8417
By: /s/ XXXXX X. XXXXX
----------------------
Xxxxx X. Xxxxx, Trust Officer, XXX
XXXXXXXX CAPITAL MANAGEMENT
By: /s/ XXXXX X. XXXXXXXX
-------------------------
Xxxxx X. Xxxxxxxx, Sole Proprietor
XXXXX X. XXXXXXXX TESTAMENTARY TRUST
By: /s/ XXXXX X. XXXXXXXX
-------------------------
Xxxxx X. Xxxxxxxx, Trustee
-13-
/s/ XXXXX XXXX
--------------
Xxxxx Xxxx
XXXXXXXX FAMILY DISCRETIONARY TRUST
By: /s/ XXXXX X. XXXXXXXXXX
---------------------------
Xxxxx X. Xxxxxxxxxx, Trustee
/s/ XXXXXX X. XXXXXXX & XXXXX
-----------------------------
XXXXXXXXXX-XXXXXXX
------------------
Xxxxxx X. Xxxxxxx & Xxxxx Xxxxxxxxxx-Xxxxxxx
JTWROS
MANAGEMENT STOCKHOLDERS:
/s/ XXXXX XXXX
--------------
Xxxxx X. Xxxx
/s/ XXXXXX X. XXXXXXXXXX
------------------------
Xxxxxx X. Xxxxxxxxxx
/s/ XXXXXX X. XXXX
------------------
Xxxxxx X. Xxxx
/s/ MAYO X. XXXXXXXXX
---------------------
Mayo X. XxXxxxxxx
/s/ XXXXXXX XXXXXX
------------------
Xxxxxxx Xxxxxx
/s/ XXXXXX XXXXXX
-----------------
Xxxxxx Xxxxxx
/s/ XXXXX XXXXXX
----------------
Xxxxx Xxxxxx
XXXXXX X. XXXX, TRUSTEE FOR SARKANDA
X. XXXXXXXXXXXX
By: /s/ XXXXXX X. XXXX
----------------------
Xxxxxx X. Xxxx, Trustee
XXXXXX X. XXXX, TRUSTEE FOR XXXXXXX
X. XXXXXXXXXXXX
By: /s/ XXXXXX X. XXXX
----------------------
Xxxxxx X. Xxxx, Trustee
-14-
/s/ XXXXXXXX XXXXXXXX
---------------------
Xxxxxxxx Xxxxxxxx
/s/ XXXXXXXX X. XXXXXXXXXX
--------------------------
Xxxxxxxx X. Xxxxxxxxxx
XXXXXX X. XXXXXXXXXX, TRUSTEE FOR
XXXXXX X. XXXXXXXXXX
By: /s/ XXXXXX X. XXXXXXXXXX
-----------------------------
Xxxxxx X. Xxxxxxxxxx, Trustee
XXXXXXXX XXXXXXXX, TRUSTEE FOR
XXXXXXXXXX XXXXXXXXXX
By: /s/ XXXXXXXX XXXXXXXX
--------------------------
Xxxxxxxx Xxxxxxxx, Trustee
XXXXXXXX XXXXXXXX, TRUSTEE FOR
XXXXX XXXXXXX
By: /s/ XXXXXXXX XXXXXXXX
--------------------------
Xxxxxxxx Xxxxxxxx, Trustee
XXXXXX FAMILY LIMITED PARTNERSHIP
By: XXXXXX FAMILY COMPANY
By: /s/ XXX X. XXXXXX
----------------------
Xxx X. Xxxxxx, President
/s/ XXX XXXXXX
--------------
Xxx Xxxxxx
/s/ XXXXXXXX XXXXXXXX
---------------------
Xxxxxxxx Xxxxxxxx
/s/ XXXXX XXXXXXX
-----------------
Xxxxx Xxxxxxx
/s/ X.X. XXXXXXXX, III
----------------------
X.X. Xxxxxxxx, III
/s/ XXX XXXXXXX
---------------
Xxx Xxxxxxx
/s/ XXXX XXXX
-------------
Xxxx Xxxx
/s/ XXXXX XXXX
--------------
Xxxxx Xxxx
-15-
/s/ XXXXXX XXXXX
----------------
Xxxxxx Xxxxx
-16-
Schedule 1
Investors
---------
Plantinum Venture Partners I, L.P.
Xxxxxx X. Xxxxxxxxxx
Xxxxx Xxxxxxxxxx
Xxxxx Xxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Steel & Xxxxxxxx Xxxxx JTWROS
Xxxxxx X. Xxxxxxxxx
Xxx Xxxxxx
Xxx Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxx Xxxxxxx, Xx.
Xxxxx Xxxxxxx, Xx.
Xxxxxxx, Inc. (c/o Xxxxx Xxxxxxxx)
Xxxxx Xxxx Xxxx
Xxx Xxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxxxxxx
Xxxxx Xxxxxx
Xxxxxxxxx Xxxxxxxxxx
Xxxx Xxxxxx Bank Custodian FBO Xxxxxx Xxxxx XXX #8417
Xxxxxxxx Capital Management
Xxxxx X. Xxxxxxxx Testamentary Trust
Xxxxx Xxxx
Xxxxxxxx Family Discretionary Trust (c/o Xxxxx Xxxxxxxxxx)
Xxxxxx X. Xxxxxxx & Xxxxx Xxxxxxxxxx-Xxxxxxx JTWROS
Schedule 2
Management Stockholders
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxx
Xxxx X. XxXxxxxxx
Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxxx, Trustee for Sarkanda X. Xxxxxxxxxxxx
Xxxxxx X. Xxxx, Trustee for Xxxxxxx X. Xxxxxxxxxxxx
Xxxxxxxx Xxxxxxxx
Xxxxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx, Trustee for Xxxxxx X. Xxxxxxxxxx
Xxxxxxxx Xxxxxxxx, Trustee for Xxxxxxxxxx Xxxxxxxxxx
Xxxxxxxx Xxxxxxxx, Trustee for Xxxxx Xxxxxxx
Xxxxxx Family Limited Partnership (c/o Xxx X. Xxxxxx)
Xxx Xxxxxx
Xxxxxxxx Xxxxxxxx
Xxxxx Xxxxxxx
X.X. Xxxxxxxx, III
Xxx Xxxxxxx
Xxxx Xxxx
Xxxxx Xxxx
Xxxxxx Xxxxx
