EXHIBIT 2.1
MERGER AGREEMENT
AMONG
BLUE RHINO CORPORATION,
PLATINUM ACQUISITION, LLC,
AND
PLATINUM PROPANE, L.L.C.
November 22, 2002
TABLE OF CONTENTS
ARTICLE I THE MERGER............................................................... 1
1.1 Merger............................................................................ 1
1.2 Required Approval; Filing......................................................... 1
1.3 Effective Time.................................................................... 2
1.4 Closing........................................................................... 2
1.5 Effect of Merger.................................................................. 2
1.6 Further Assurances................................................................ 2
1.7 Merger Consideration.............................................................. 2
1.8 Working Capital Adjustment........................................................ 3
1.9 Transfer of Financial Results of Operations....................................... 4
ARTICLE II REPRESENTATIONS AND WARRANTIES OF PLATINUM............................... 4
2.1 Organization and Good Standing; Governing Documents............................... 4
2.2 Authority......................................................................... 4
2.3 No Conflict or Breach............................................................. 5
2.4 Consents and Approvals............................................................ 5
2.5 Capitalization.................................................................... 5
2.6 Subsidiaries; Investments......................................................... 5
2.7 Platinum Subs..................................................................... 6
2.8 Minute Books...................................................................... 7
2.9 Financial Statements.............................................................. 7
2.10 Books and Records................................................................. 7
2.11 Title to Assets; Liens............................................................ 7
2.12 Real Property..................................................................... 8
2.13 Tangible Personal Property........................................................ 9
2.14 Inventories....................................................................... 9
2.15 Contracts......................................................................... 9
2.16 Receivables....................................................................... 10
2.17 Intellectual Property............................................................. 10
2.18 Major Suppliers and Customers..................................................... 10
2.19 Litigation........................................................................ 11
2.20 Compliance with Decrees and Laws.................................................. 11
2.21 Permits........................................................................... 11
2.22 Taxes............................................................................. 11
2.23 Environmental Matters............................................................. 12
2.24 Insurance......................................................................... 13
2.25 Labor and Employment Matters...................................................... 13
2.26 Employees; Compensation; Benefit Plans............................................ 13
2.27 Absence of Certain Changes........................................................ 14
2.28 Product Warranties................................................................ 15
2.29 Product Liability................................................................. 15
2.30 Related Party Transactions........................................................ 16
2.31 Brokers........................................................................... 16
2.32 Bank Accounts..................................................................... 16
2.33 Acknowledgement of Class B Unit Acquisition....................................... 16
2.34 Representations of Platinum Holding Regarding the Stock Consideration............. 16
2.35 Disclosure........................................................................ 18
ARTICLE III REPRESENTATIONS AND WARRANTIES OF BLUE RHINO AND ACQUISITION SUB......... 18
3.1 Capital Structure of Blue Rhino................................................... 18
3.2 Organization, Standing and Authority of Blue Rhino................................ 18
3.3 Organization, Standing and Authority of Acquisition Sub........................... 18
3.4 Authorized and Effective Agreement................................................ 18
3.5 Governmental Approvals............................................................ 19
3.6 Brokers........................................................................... 19
ARTICLE IV COVENANTS OF PLATINUM AND PLATINUM HOLDING............................... 19
4.1 Access and Information............................................................ 19
ARTICLE V MUTUAL COVENANTS......................................................... 20
5.1 Best Efforts...................................................................... 20
5.2 Confidentiality................................................................... 20
ARTICLE VI CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BLUE RHINO AND ACQUISITION SUB 21
6.1 Representations and Warranties.................................................... 21
6.2 Compliance with Covenants......................................................... 21
6.3 Absence of Litigation............................................................. 21
6.4 Absence of Change................................................................. 21
6.5 Consents and Approvals............................................................ 21
6.6 Removal of Liens.................................................................. 21
6.7 Purchase of Class B Units......................................................... 21
6.8 Legal Opinion..................................................................... 22
6.9 No Claim Regarding Interests...................................................... 22
ARTICLE VII CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PLATINUM...................... 22
7.1 Representations and Warranties.................................................... 22
7.2 Compliance with Covenants......................................................... 22
7.3 Absence of Litigation............................................................. 22
ARTICLE VIII CLOSING DELIVERIES....................................................... 22
8.1 Deliveries by Platinum............................................................ 22
8.2 Deliveries by Blue Rhino.......................................................... 23
ARTICLE IX INDEMNIFICATION.......................................................... 23
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9.1 Indemnification by Platinum and the Members....................................... 23
9.2 Indemnification by Blue Rhino..................................................... 24
9.3 Indemnification by Blue Rhino Regarding Acquisition Sub........................... 25
9.4 Notice of Claim................................................................... 25
9.5 Defense........................................................................... 25
9.6 Other Remedies.................................................................... 25
ARTICLE X TERMINATION.............................................................. 25
10.1 Termination....................................................................... 25
10.2 Effect on Obligations............................................................. 26
ARTICLE XI MISCELLANEOUS............................................................ 26
11.1 Survival of Representations....................................................... 26
11.2 Expenses.......................................................................... 27
11.3 Publicity......................................................................... 27
11.4 Best Efforts...................................................................... 27
11.5 Notices........................................................................... 27
11.6 Counterparts...................................................................... 28
11.7 Assignment........................................................................ 28
11.8 Third Party Beneficiaries......................................................... 28
11.9 Headings.......................................................................... 28
11.10 Recitals.......................................................................... 28
11.11 Amendments........................................................................ 28
11.12 Specific Performance.............................................................. 28
11.13 Governing Law..................................................................... 29
11.14 Jurisdiction...................................................................... 29
11.15 Remedies.......................................................................... 29
11.16 Severability...................................................................... 29
11.17 Entire Agreement.................................................................. 29
11.18 Construction...................................................................... 29
11.19 Time of Essence................................................................... 29
11.20 Waiver............................................................................ 30
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LISTS OF EXHIBITS AND SCHEDULES
Exhibits:
[OMITTED--EXHIBITS WILL BE FURNISHED SUPPLEMENTARILY TO THE COMMISSION UPON
REQUEST]
A Form of Certificate of Merger
B Form of Class B Unit Purchase Agreement
C Form of Legal Opinion of Platinum's Counsel
Schedules:
1.7 List of redeemed Class B Unit holders and payoff amount
2.1 Jurisdictions of Platinum and Platinum Subs
2.4 Consents and Approvals
2.11 Liens
2.12 Leased Real Property
2.15 Contracts
2.17 Intellectual Property
2.18 Major Suppliers
2.21 Permits
2.24 Insurance
2.27 Changes Since Most Recent Financial Statement
2.32 Bank Accounts
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MERGER AGREEMENT
THIS MERGER AGREEMENT (this "AGREEMENT"), dated as of November 22, 2002,
is by and among PLATINUM PROPANE, L.L.C., a Delaware limited liability company
("PLATINUM"), PLATINUM PROPANE HOLDING, L.L.C. ("PLATINUM HOLDING"), a Delaware
limited liability company member of Platinum, PLATINUM ACQUISITION, LLC, a
Delaware limited liability company ("ACQUISITION SUB"), and BLUE RHINO
CORPORATION, a Delaware corporation ("BLUE RHINO").
R E C I T A L S:
The parties desire that Acquisition Sub shall be merged into Platinum
(said transaction being hereinafter referred to as the "MERGER"), and the
parties desire to provide for certain undertakings, conditions, representations,
warranties and covenants in connection with the transactions contemplated
hereby.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 Merger. Platinum and Acquisition Sub are constituent entities (the
"CONSTITUENT ENTITIES") to the Merger as contemplated by the Delaware Limited
Liability Company Act (the "ACT"). At the Effective Time:
(a) Acquisition Sub shall be merged into Platinum in accordance with
the applicable provisions of the Act, with Platinum being the surviving
entity (hereinafter sometimes referred to as the "SURVIVING ENTITY").
(b) The separate existence of Acquisition Sub shall cease and the
Merger shall in all respects have the effects provided in Section 1.5.
(c) The Manager of Platinum as of the Effective Time shall be Blue
Rhino until its successor is elected in accordance with the Surviving
Entity's Limited Liability Company Agreement dated August 1, 1998, as may
be amended from time to time (the "PLATINUM OPERATING AGREEMENT").
1.2 Required Approval; Filing. The Merger shall not become effective
unless this Agreement is duly approved: (i) by Platinum in accordance with the
Platinum Operating Agreement (A) by the holders of record of greater than fifty
percent (50%) of the outstanding units of Platinum ("UNITS"), as defined in the
Platinum Operating Agreement, or (B) by the Manager of Platinum with approval of
the Board of Directors of Platinum Holding; and (ii) by the sole member of
Acquisition Sub. Upon fulfillment or waiver of the conditions specified in
ARTICLE VII, the Surviving Entity will cause a Certificate of Merger
substantially in the form
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of Exhibit A hereto to be executed and filed with the Secretary of State of
Delaware, as provided in Section 18-209(c) of the Act.
1.3 Effective Time. The Merger shall be effective on the day and hour
specified in the Certificate of Merger filed as provided in Section 1.2 (the
"EFFECTIVE TIME").
1.4 Closing. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall take place at the offices of Xxxxxx Xxxxxxx
Xxxxxxxxx & Xxxx, PLLC, One West Fourth Street, Winston-Salem, North Carolina,
at 10:00 a.m. on the date hereof (the "CLOSING DATE").
1.5 Effect of Merger. From and after the Effective Time, the separate
existence of Acquisition Sub shall cease, and the Surviving Entity shall
thereupon and thereafter, to the extent consistent with its governing documents,
possess all of the rights, privileges, immunities and franchises, of a public as
well as a private nature, of each of the Constituent Entities; and all property,
real, personal and mixed, and all debts due on whatever account, and all other
chose in action, and each and every other interest of or belonging to or due to
each of the Constituent Entities shall be taken and deemed to be transferred to
and vested in the Surviving Entity without further act or deed; and the title to
any real estate or any interest therein vested in either of the Constituent
Entities shall not revert or be in any way impaired by reason of the Merger. The
Surviving Entity shall thenceforth be responsible for all the liabilities,
obligations and penalties of each of the Constituent Entities; and any claim,
existing action or proceeding, civil or criminal, pending by or against either
of the Constituent Entities may be prosecuted as if the Merger had not taken
place, or the Surviving Entity may be substituted in its place; and any judgment
rendered against either of the Constituent Entities may be enforced against the
Surviving Entity. Neither the rights of creditors nor any liens upon the
property of either of the Constituent Entities shall be impaired by reason of
the Merger.
1.6 Further Assurances. If, at any time after the Effective Time, the
Surviving Entity shall consider or be advised that any further deeds,
assignments or assurances in law or any other actions are necessary, desirable
or proper to vest, perfect or confirm of record or otherwise, in the Surviving
Entity, the title to any property or rights of the Constituent Entities acquired
or to be acquired by reason of, or as a result of, the Merger, each of the
Constituent Entities agrees that it and its proper officers, directors and
managers shall and will execute and deliver all such proper deeds, assignments
and assurances in law and do all things necessary, desirable or proper to vest,
perfect or confirm title to such property or rights in the Surviving Entity and
otherwise to carry out the purpose of this Agreement, and that the proper
officers, directors and managers of the Surviving Entity are fully authorized
and directed in the name of the Constituent Entities or otherwise to take any
and all such actions.
1.7 Merger Consideration.
(a) At the Effective Time, by virtue of the Merger and without any
action on the part of Platinum or Platinum Holding, the sole member of
Platinum (the "MEMBER"),
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the Units (as defined in the Platinum Operating Agreement), in the
aggregate, shall be converted into, and shall represent the right to
receive:
(i) Subject to the Working Capital Adjustment set forth in
Section 1.8 below, 715,091 shares of Blue Rhino's common stock, par
value $0.001 per share, equal to $11,026,702 divided by the average
of the closing prices of the Common Stock on the Nasdaq National
Market over the thirty (30) trading days ending November 1, 2002,
such average closing price being $15.42, as reported in The Wall
Street Journal - Eastern Edition listing for each such day (the
"STOCK CONSIDERATION"); and
(ii) Cash (the "CASH CONSIDERATION" and, together with the
Stock Consideration, the "MERGER CONSIDERATION") in an amount as
follows:
(A) An amount sufficient to satisfy in full Platinum's
credit line with Southern Community Bank and all outstanding
debt to officers of Platinum as of the Closing Date, such
amount estimated to be approximately $3,200,000. The Cash
Consideration shall be paid by Blue Rhino directly to Southern
Community Bank and the officer-creditors for Platinum's
account.
(B) The sum of $200,000 which shall be used to satisfy
the payment obligation to each Class B Unit holder of Platinum
and each Platinum Sub (as defined in Section 2.6) as
consideration for Platinum's acquisition of such Class B Units
as contemplated by Section 6.7 hereof. The amount each such
obligation and name of the payee is shown on Schedule 1.7.
(b) Upon Closing, Blue Rhino shall deliver the Stock Consideration
to Platinum Holding.
(c) At the Effective Time, each one percent (1%) membership interest
of Acquisition Sub shall be converted into one (1) Class A Unit of
Platinum.
1.8 Working Capital Adjustment.
(a) The Stock Consideration shall be subject to downward adjustment,
dollar for dollar, to the extent Platinum's Aggregate Negative Working Capital
(as defined below) is greater than $4,575,000 (the "Working Capital
Adjustment"). For purposes of this Agreement, Aggregate Negative Working Capital
shall be equal to the amount by which aggregate current liabilities exceed
aggregate current assets for Platinum and the Platinum Subs (as defined in
Section 2.6) considered as a group, and all as determined as of the Closing Date
in accordance with generally accepted accounting principles, consistently
applied.
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(b) Blue Rhino shall cause its determination of the Aggregate
Negative Working Capital to be reviewed by The Xxxxxx Professional Group,
Inc. (the "Accountants"), and shall deliver to Platinum a copy of such
initial determination on the Closing Date and the report of the
Accountants regarding its review thereof, together with a certificate of
such accounting firm that the current assets and current liabilities used
in the calculation of Aggregate Negative Working Capital have been fairly
stated in accordance with generally accepted accounting principles,
consistently applied.
1.9 Transfer of Financial Results of Operations. Acquisition Sub, Blue
Rhino, Platinum and Platinum Holding agree that, upon Closing, the transfer of
all financial results of operations of Platinum and the Platinum Subs
contemplated by this Agreement, including the balance sheet of Platinum and each
Platinum Sub and the related statements of operations, equity and cash flows,
each determined in accordance with Section 2.9(a)(C), shall be deemed to have
occurred on November 1, 2002.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PLATINUM
Platinum and Platinum Holding, acknowledging that Blue Rhino and
Acquisition Sub are executing this Agreement and consummating the Merger in
reliance thereon, represents and warrants to Blue Rhino and Acquisition Sub as
follows:
2.1 Organization and Good Standing; Governing Documents. Platinum is a
limited liability company duly organized, validly existing and in good standing
under the laws of the Delaware. Platinum has the requisite limited liability
company power and authority to own, operate and lease its properties and to
carry on its business as now conducted. Platinum is duly qualified to do
business as a foreign limited liability company and is in good standing in all
other jurisdictions in which the character of the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification necessary, and such jurisdictions are listed on Schedule 2.1. True
and complete copies of the Certificate of Formation and the Limited Liability
Company Agreement of Platinum, including all amendments to such documents, have
previously been delivered to Blue Rhino.
2.2 Authority. Platinum has all requisite power and authority to execute,
deliver and perform this Agreement and the Exhibits to this Agreement to which
Platinum is a party (together with this Agreement, the "PLATINUM AGREEMENTS")
and to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance of each of the Platinum Agreements, and the
consummation of the transactions contemplated thereby, have been duly and
validly authorized by all necessary limited liability company action (subject to
the approval of the Members). This Agreement has been duly executed and
delivered by Platinum and constitutes, and, at Closing, each of the other
Platinum Agreements will be duly executed and delivered by Platinum and
constitute, a valid and binding obligation of Platinum, enforceable against
Platinum in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the rights and remedies of
creditors, and
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subject to the further qualification that the remedy of specific performance or
injunctive relief is discretionary with the court before which any proceeding
therefor may be brought.
2.3 No Conflict or Breach. The execution, delivery and performance of the
Platinum Agreements do not and will not:
(a) conflict with or constitute a violation of the Certificate of
Formation or Limited Liability Company Agreement of Platinum;
(b) conflict with or constitute a violation of any law, statute,
judgment, order, decree or regulation of any legislative body, court,
administrative agency, governmental authority or arbitrator applicable to
or relating to Platinum or its assets;
(c) conflict with, constitute a default under, result in a breach or
acceleration of, or require notice to or the consent of any third party
under, any contract, agreement, commitment, lease, mortgage, note, license
or other instrument or obligation to which Platinum is party or by which
it is bound or by which its assets are affected; or
(d) result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever on any of the assets of Platinum or
on the Units.
2.4 Consents and Approvals. Schedule 2.4 describes (a) each consent,
approval, authorization, registration or filing with any federal, state or local
judicial or governmental authority or administrative agency; and (b) each
consent, approval, authorization of or notice to any other third party, which is
required in connection with the valid execution and delivery by Platinum of this
Agreement or any of the other Platinum Agreements or the consummation by
Platinum of the transactions contemplated hereby or thereby (clauses (a) and
(b), collectively, the "REQUIRED CONSENTS").
2.5 Capitalization. All of the Units are validly issued, fully paid and
nonassessable, are free from any lien, pledge or other encumbrance of any kind,
and were not issued in violation of any, preemptive rights, and are owned of
record and beneficially by Platinum Holding, which is the sole member and
manager of Platinum. There are no outstanding or authorized options, warrants,
rights, contracts, calls, puts, right to subscribe, conversion rights or other
agreements or commitments to which Platinum is a party or which are binding upon
Platinum providing for the issuance, disposition or acquisition of any Units or
membership interests. Except for the Platinum Operating Agreement, there are no
voting trusts, proxies or any other agreements or understandings with respect to
the voting of the Units or membership interests of Platinum. Except for the
Platinum Operating Agreement and the agreements with the Class B Unit holders
contemplated by Sections 2.33 and 6.7 hereof, Platinum is not subject to any
obligation (contingent or otherwise) to repurchase or otherwise acquire or
retire any Units or membership interests.
2.6 Subsidiaries; Investments. Except for its subsidiaries listed in this
Section 2.6 (each a "Platinum Sub" and together, the "Platinum Subs"), Platinum
does not own or hold any
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shares of stock or any other security or interest in any other entity, or any
rights to acquire any such security or interest. Except for the Platinum Subs,
Platinum has never had any subsidiary entity of which the securities having a
majority of the voting power in electing the board of directors (or analogous
body) were, at the time as of which any determination was made, owned by
Platinum either directly or indirectly. The following are the Platinum Subs:
(a) Platinum Propane North Carolina, L.L.C.
(b) Platinum Propane Georgia, L.L.C.
(c) Platinum Propane of Florida, L.P.
(d) Platinum Propane Chicago, L.L.C., and
(e) Platinum Propane Los Angeles, L.L.C.
2.7 Platinum Subs. As of the Closing Date, and after giving effect to the
Class B Unit acquisitions contemplated by Section 6.7 below, Platinum is the
sole member and manager of each Platinum Sub that is a limited liability
company, and the sole general partner and sole limited partner of Platinum
Propane of Florida, L.P. Each of the Platinum Subs is a limited liability
company or limited partnership, as the case may be, duly organized, validly
existing and in good standing under the laws of the Delaware. Each Platinum Sub
has the requisite power and authority to own, operate and lease its properties
and to carry on its business as now conducted. Each Platinum Sub is duly
qualified to do business as a foreign entity and is in good standing in all
jurisdictions in which the character of the property owned, leased or operated
by it or the nature of the business conducted by it makes such qualification
necessary. True and complete copies of the Certificates of Formation and the
Limited Liability Company Agreement of each Platinum Sub that is a limited
liability company, and the Certificate of Limited Partnership and Limited
Partnership Agreement for each Platinum Sub that is a limited partnership (all
such documents being the "FORMATION DOCUMENTS"), including all amendments to
such documents, have previously been delivered to Blue Rhino. The execution,
delivery and performance of the Platinum Agreements do not and will not:
(a) conflict with or constitute a violation of any of the Formation
Documents of any Platinum Sub;
(b) conflict with or constitute a violation of any law, statute,
judgment, order, decree or regulation of any legislative body, court,
administrative agency, governmental authority or arbitrator applicable to
or relating to any Platinum Sub or their respective assets;
(c) conflict with, constitute a default under, result in a breach or
acceleration of, or require notice to or the consent of any third party
under, any contract, agreement, commitment, lease, mortgage, note, license
or other instrument or obligation to which
6
any Platinum Sub is party or by which any Platinum Sub is bound or by
which its assets are affected; or
(d) result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever on any of the assets of any Platinum
Sub.
2.8 Minute Books. The minute books of Platinum and each Platinum Sub are
true, correct, complete and current in all material respects and contain
accurate and complete records of all material actions taken by such entity's
members and managers and each committee thereof, and all signatures contained in
such minute books are the true signatures of the persons whose signatures they
purport to be.
2.9 Financial Statements
(a) Platinum has previously delivered to Blue Rhino true and
complete copies of (i) the final balance sheet of Platinum and each
Platinum Sub as of December 31, 2001 and the related statements of
operations, equity and cash flows for the fiscal years then ended,
including the footnotes to such statements, additional or supplemental
information supplied therewith and the report prepared in connection
therewith by the certified public accountants that prepared such financial
statements; and (ii) interim financial reports of Platinum and each
Platinum Sub prepared for each quarter since December 31, 2001 (all of the
foregoing, collectively, the "FINANCIAL STATEMENTS"). The Financial
Statements: (A) are in accordance with the books and records of Platinum
and each Platinum Sub, as the case may be; (B) present fairly the assets,
liabilities and financial condition of Platinum and each Platinum Sub, as
the case may be, in all material respects as of the respective dates of
the Financial Statements, and the results of operations for the periods
then ending; and (C) have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved, subject to normal year-end adjustments and
footnotes.
(b) Neither Platinum nor any of the Platinum Subs has any liability
or obligation, whether accrued, absolute or contingent, that is not
reflected or reserved against in the most recent Financial Statements or
those incurred since the date of such Financial Statements in the ordinary
course of business consistent with past practice. All items of income or
expense which are unusual or of a nonrecurring nature are separately
disclosed in the Financial Statements.
2.10 Books and Records. The books and records of Platinum and each
Platinum Sub are true, accurate and complete and, where appropriate, have been
maintained in accordance with generally accepted accounting principles applied
on a consistent basis. At Closing, all such books and records and all tax
returns filed by Platinum and each Platinum Sub will be in the possession of
Platinum.
2.11 Title to Assets; Liens. Except as disclosed on Schedule 2.11:
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(a) Platinum and each Platinum Sub has good and marketable title to
all of the properties and assets (real or personal, tangible or intangible)
owned by it (including, without limitation, those properties and assets
shown on the most recent Financial Statements), and a valid leasehold or
other possessory interest in all other properties and assets used, operated
or occupied by it, located on its premises or otherwise shown on the most
recent Financial Statements, except for tangible personal property sold or
disposed of in the ordinary course of business and consistent with past
practice.
(b) Except for liens to be cleared at closing through application of
the Cash Consideration pursuant to Section 1.7(a)(ii), all of the
properties and assets of Platinum and each Platinum Sub (whether real or
personal, tangible or intangible, owned, leased or otherwise acquired) are
free and clear of any liens, claims, charges, security interests,
mortgages, pledges or other encumbrances or restrictions of any nature
whatsoever (collectively, "LIENS"). There are no existing breaches or
defaults under, and no events or circumstances have occurred which, with or
without notice or lapse of time or both, would constitute a breach of or a
default under, any instrument, agreement or other document that creates,
evidences or constitutes any such Lien or that evidences, secures or
governs the terms of any indebtedness or obligation secured by any such
Lien (any such instrument, agreement or other document is referred to
herein as a "LIEN INSTRUMENT"). Neither the execution of any of the
Platinum Agreements by Platinum nor consummation of the Merger or the other
transactions contemplated thereby will, with respect to any Lien
Instrument, (i) constitute a breach thereof or a default thereunder; (ii)
permit (with or without notice, lapse of time or both), cause or result in
(A) the acceleration of any indebtedness or other obligation evidenced,
secured or governed thereby or (B) the foreclosure or other enforcement of
any such Lien; (iii) permit or cause the terms thereof to be renegotiated;
or (iv) require the consent of the holder of any such indebtedness or
obligation or any third party.
2.12 Real Property. Neither Platinum nor any Platinum Sub owns any real
property. Schedule 2.12 contains a true and correct description of all: (i) real
property leased by Platinum or any Platinum Sub (the "LEASED REAL PROPERTY");
(ii) leases relating to the Leased Real Property (collectively, the "REAL
PROPERTY LEASES"); (iii) Liens upon or, to the best knowledge of Platinum and
Platinum Holding, affecting any of the rights to or interest in any of the
Leased Real Property or any Real Property Lease; (iv) agreements, oral or
written, pursuant to which any person or entity (other than Platinum or a
Platinum Sub) leases, subleases, occupies or has the right to occupy any Leased
Real Property; and (v) agreements and other undertakings, oral or written, to
sell, lease, sublease, assign, encumber or otherwise dispose of any Leased Real
Property or Real Property Lease. To the best knowledge of Platinum Holding, the
Leased Real Property is zoned for the various purposes for which the buildings
and other improvements located thereon (the "IMPROVEMENTS") are presently being
used, and such uses thereof are in compliance with all applicable zoning and
land use laws, ordinances and regulations. All Improvements are in good repair
and in good operating condition, ordinary wear and tear excepted, and free from
latent and patent defects. No part of any Improvement encroaches on any real
property not included in the Leased Real Property. Each of the Real Property
Leases is
8
valid, binding and enforceable in accordance with its terms and is in full force
and effect, and there are no offsets or defenses by either landlord or tenant
thereunder. There are no existing breaches of or defaults under, and no events
or circumstances have occurred which, with or without notice or lapse of time or
both, would constitute a breach of or a default under, any of the Real Property
Leases.
2.13 Tangible Personal Property. Platinum and each Platinum Sub owns or
leases all buildings, machinery, equipment, vehicles and other tangible assets
necessary for the conduct of its respective business (the "TANGIBLE PROPERTY").
Each item of Tangible Property is in good operating order, condition and repair,
ordinary wear and tear excepted, is suitable for immediate use in the ordinary
course of business, is, to the best knowledge of Platinum and Platinum Holding,
free from defects (latent and patent), is merchantable and is of a quality and
quantity presently usable in the ordinary course of business. To the best
knowledge of Platinum and Platinum Holding, no item of Tangible Property is in
need of repair or replacement. All motor vehicles have current registrations,
consistent with their class of use, for the states in which they operate, and
all motor vehicles have current inspection certifications for the states in
which such inspections are required by the normal operation of such vehicles by
Platinum or a Platinum Sub, as the case may be, in the ordinary course of
business.
2.14 Inventories. To the best knowledge of Platinum and Platinum Holding,
all items included in the inventories of Platinum and each Platinum Sub (i) are
in good condition, not obsolete or defective; (ii) are useable or saleable
within ninety (90) days from the date of this Agreement in the ordinary course
of business and at the current operating profit margins of the entity owning the
inventory; (iii) are located on the premises described on Schedule 2.12; and
(iv) have been acquired only in bona fide transactions entered into in the
ordinary course of business. The quantities of each item of inventory are not
excessive based upon historical requirements.
2.15 Contracts. Schedule 2.15 lists all contracts, commitments, agreements
(including agreements for the borrowing of money or the extension of credit),
leases (other than Real Property Leases), licenses, understandings and
obligations, whether written or oral, to which Platinum or any Platinum Sub is
party or by which Platinum or any Platinum Sub is bound or affected, that: (i)
involves the expenditure by any party to such contract, commitment, agreement,
lease, license, understanding or obligation of more than $10,000 (ii) are not
terminable by either party thereto without penalty on not more than 30 days
notice; (iii) include third party warranties or guarantees with respect to any
item of Tangible Property; or (iv) that are otherwise material to the operation
of the business of Platinum or any Platinum Sub (all of the foregoing,
collectively, "CONTRACTS"). Platinum has delivered to Blue Rhino true and
complete copies of all written Contracts and true and complete memoranda
describing all oral Contracts, including any and all amendments and other
modifications to such Contracts. Each of the Contracts is valid, binding and
enforceable in accordance with its terms and is in full force and effect. No
Contract will result in a loss upon completion of performance, and no purchase
commitment is in excess of the normal business requirements of Platinum or any
Platinum Sub or at excessive prices. There are no existing defaults, and no
events or circumstances have
9
occurred which, with or without notice or lapse of time or both, would
constitute defaults, under any of the Contracts. Neither the execution of any of
the Platinum Agreements nor the consummation of the Merger or the other
transactions contemplated thereby will, with respect to any Contract: (i)
constitute a default thereunder; (ii) require the consent of any person or
party, except for the Required Consents; or (iii) affect the continuation,
validity and effectiveness of any Contract or the terms of any Contract.
2.16 Receivables. All accounts receivable and trade accounts reflected on
the most recent Financial Statements (less any such receivables collected since
the date thereof) and all accounts receivable and trade accounts presently owing
and to be owing to Platinum and any Platinum Sub on the Closing Date
(collectively, the "RECEIVABLES," in each case net of the reserves established
and reflected on the most recent Financial Statements), are, and on the Closing
Date will be, legal, valid and binding obligations, and are and will be, to the
best knowledge of Platinum and Platinum Holding, collectible in full at face
value (net of the reserves established and reflected in the most recent
Financial Statements) within ninety (90) days after closing.
2.17 Intellectual Property. Schedule 2.17 sets forth a list of all: (i)
trademarks, service marks, trade names, logos and other designations owned or
used by Platinum or any Platinum Sub, and all United States, foreign and state
registrations relating thereto and applications therefor; (ii) copyrighted works
owned by Platinum or any Platinum Sub and registrations issued by the United
States Copyright Office or the office of any foreign jurisdiction for any of the
copyrights; (iii) inventions owned or used by Platinum or any Platinum Sub which
are the subject of United States or foreign letters patent or applications
therefor, together with the applicable patent number, application number,
application date and issue date; (iv) confidential or proprietary processes,
formulas, technical data, trade secrets, know-how, and other similar information
that is of commercial value to Platinum or any Platinum Sub, and (v) all
software, whether commercially available, commercially developed for Platinum or
any Platinum Sub, or developed by Platinum or any Platinum Sub, including a
brief description thereof (collectively, "INTELLECTUAL PROPERTY"). Platinum or
the Platinum Sub, as the case may be, owns all right, title and interest in and
to each item included in the Intellectual Property, free and clear of any Liens
or licenses, except for commercially acquired software, to which Platinum or a
Platinum Sub has current valid and paid-up licenses to use as presently used by
such entity on the computers on which such software is installed. The
Intellectual Property consists of all of the intellectual property rights
necessary to conduct the business of Platinum and the Platinum Subs as presently
conducted. All registrations relating to the Intellectual Property are validly
issued and remain in full force and effect. Each trademark has been in
continuous use on all goods described in the applicable registrations.
2.18 Major Suppliers and Customers. Each supplier of goods or services to
whom Platinum and the Platinum Subs paid more than $200,000, in the aggregate,
during the 12 months ended on September 30, 2002, is disclosed on Schedule 2.18,
which Schedule reflects in each case the amounts so paid. Platinum is not
engaged in any dispute with any of such suppliers or
10
customers. Platinum has no reason to believe that the Merger will have any
adverse effect on the business relationship of any such suppliers.
2.19 Litigation. Except as set forth on Schedule 2.19, there are no claims,
actions, suits, inquiries, hearings or investigations ("CLAIMS") pending or, to
the knowledge of Platinum, threatened, against Platinum or any Platinum Sub
(including any related to its Intellectual Property) and no Claims have been
brought within the last two years against Platinum or any Platinum Sub, which
Claims are not fully insured against and for which Platinum's insurance carrier
has not accepted responsibility for coverage in accordance with the terms of
Platinum's insurance policies.. There are no facts or circumstances that could
serve as the basis for any Claim against Platinum or any Platinum Sub, or, by
virtue of the execution, delivery and performance of this Agreement, against
Blue Rhino or Acquisition Sub.
2.20 Compliance with Decrees and Laws. There is not outstanding or, to the
knowledge of Platinum, threatened, any order, writ, injunction or decree of any
court, governmental agency or arbitration tribunal against or involving Platinum
or any Platinum Sub, which would have a material adverse effect on the assets of
such entity or on its continuing operations. Platinum and each Platinum Sub is
currently, and has been at all times during the past three years, in compliance
in all material respects with all laws, statutes, rules, regulations, orders and
licensing requirements of federal, state, local and foreign agencies and
authorities applicable to the business and properties of such entity (including,
without limitation, those relating to antitrust and trade regulation, civil
rights, environment, labor and employment discrimination, affirmative action,
safety and health) (collectively, "RULES"). To the knowledge of Platinum, there
has been no allegation of any violation of any Rules, and no investigation or
review by any federal, state or local body or agency is pending, threatened or
planned with respect to Platinum or any Platinum Sub.
2.21 Permits. Platinum and each Platinum Sub has obtained all permits,
authorizations, certificates, approvals, licenses, exemptions and
classifications required for the conduct of its respective business in the
locations at which each currently operates and for the ownership and operation
of its assets, all of which permits are described on Schedule 2.21 (the
"PERMITS"). Neither Platinum nor any Platinum Sub is in violation of any of the
Permits, and no proceedings to revoke or limit any Permit are pending or, to the
knowledge of Platinum, threatened.
2.22 Taxes. Platinum and each Platinum Sub has timely filed all tax returns
that each was required to file before the Closing Date, and such tax returns
were correct and complete in all respects. All taxes required to be withheld or
paid by Platinum and each Platinum Sub (whether or not shown on any tax return)
have been withheld and paid. Neither Platinum nor any Platinum Sub currently is
the beneficiary of any extension of time within which to file any tax return and
has not waived any statute of limitations in respect of taxes or agreed to any
extension of time with respect to a tax assessment or deficiency. There is no
pending or, to the knowledge of Platinum, threatened dispute or claim concerning
any tax liability of Platinum or any Platinum Sub. Neither Platinum nor any
Platinum Sub has any liability for taxes except (i) as of the most
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recent fiscal month end, as shown on the reserve for tax liability (excluding
any reserve for deferred taxes established to reflect timing differences between
book and tax income) set forth on the face of the most recent balance sheet
(rather than in any notes thereto); and (ii) as of the Closing Date, as will be
shown in the reserve as adjusted for the passage of time through the Closing
Date in accordance with the past custom and practice of Platinum or the Platinum
Sub, as the case may be, in filing its tax returns. Neither Platinum nor any
Platinum Sub has ever been a member or an affiliated group within the meaning of
Section 1504(a) of the Code filing a consolidated tax return and has never
entered into a tax sharing or tax allocation agreement. Blue Rhino is not
required to withhold any tax from the Merger Consideration.
2.23 Environmental Matters. Neither Platinum nor any Platinum Sub is in
violation of, and has not violated, any applicable federal, state, county or
local statutes, laws, regulations, rules, ordinances, codes, licenses or permits
of any governmental authorities relating to environmental matters, including by
way of illustration and not by way of limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, the Resource
Conservation Recovery Act, the Clean Air Act, the Clean Water Act, the
Occupational Safety and Health Act, the Toxic Substances Control Act, any
"Superfund" or "Superlien" law or any other federal, state or local statute,
law, ordinance, code, rule, regulation, order, decree or guideline (whether
published or unpublished) regulating, relating to or imposing liability or
standards of conduct concerning Hazardous Materials, in each case as amended
from time to time (collectively, "Environmental Laws"). For purposes of this
Agreement, "HAZARDOUS MATERIALS" includes but is not necessarily limited to
asbestos, asbestos containing materials ("ACM"), polychlorinated biphenyls,
lead-based paints, any petroleum, petroleum by-product (including, but not
limited to, crude oil, diesel oil, fuel oil, gasoline, lubrication oil, oil
refuse, used motor oil, oil mixed with other waste, oil sludge and all other
liquid hydrocarbons, regardless of specific gravity), natural or synthetic gas
or other hazardous or toxic substances, materials, wastes, pollutants or
contaminants defined under or regulated by the Environmental Laws. Specifically,
but not in limitation of the foregoing:
(a) Platinum and each Platinum Sub has obtained and is in material
compliance with the terms and provisions of all licenses and permits
necessary for its respective operations and its respective assets to be in
compliance with the Environmental Laws, all of which are disclosed on
Schedule 2.21.
(b) The Improvements and the Tangible Property are free of asbestos
containing materials ("ACMS") and are free of Hazardous Materials, except
for current inventories of propane, gasoline, and diesel fuel.
(c) Platinum and each Platinum Sub has at all times received, handled,
used, stored, treated and disposed of all Hazardous Materials in strict
compliance with all Environmental Laws. With respect to all Hazardous
Materials that Platinum or any Platinum Sub has transported or for which
such entity has arranged for the transport from or to any property that it
owns, leases or uses in its operations, the facility that has accepted such
Hazardous Material is in strict compliance with all Environmental Laws.
12
(d) No Hazardous Material has been released, deposited, discharged,
placed, disposed of or originated on any property that Platinum or any
Platinum Sub owns, leases or uses in its operations. No real estate owned
or leased by Platinum or any Platinum Sub has been used as a landfill or a
waste disposal site by Platinum or any Platinum Sub or, to the best
knowledge of Platinum and Platinum Holding, by any other person at any
time.
(e) There is no electrical equipment, including transformers,
containing polychlorinated biphenyls (PCBs) included in the assets of
Platinum or any Platinum Sub. There are no monitoring xxxxx for monitoring
Hazardous Materials on, in or coming from real property owned or leased by
Platinum or any Platinum Sub. There are no underground storage tanks or
pipelines situated on any real property owned or leased by Platinum or any
Platinum Sub. There are no liens on any real property owned or leased by
Platinum or any Platinum Sub resulting from any cleanup or proposed cleanup
under the Environmental Laws. To the best knowledge of Platinum and
Platinum Holding, no part of the Leased Real Property constitutes
"wetlands" as defined under any Environmental Law or other law or
regulation.
(f) No notices of any violation, inquiries or requests for information
relating to any of the matters referred to in Sections 2.23(a), (b), (c),
(d), (e), and (f) have been received by Platinum or any Platinum Sub.
2.24 Insurance. Schedule 2.24 describes all insurance policies maintained
by Platinum and each Platinum Sub with respect to its respective business and
the assets. All premiums due thereon have been paid and will be paid through the
Effective Time.
2.25 Labor and Employment Matters. No employees of Platinum or any Platinum
Sub have been or are represented by a union or other labor organization or
covered by any collective bargaining agreement. There is no unfair labor
practice complaint, labor organizational effort, strike, slowdown or similar
labor matter pending or, to the knowledge of Platinum, threatened against or
affecting Platinum, any Platinum Sub or their respective businesses. Platinum
and each Platinum Sub is in compliance with all federal, state and local laws
and regulations respecting employment and employment practices, terms and
conditions of employment and wages and hours, and there is no unfair labor
practice charge or complaint or charge of employment discrimination or
retaliation against Platinum or any Platinum Sub pending or, to the knowledge of
Platinum, threatened, impending or planned. There have been no "layoffs" of
employees of or any "plant closings" by Platinum or any Platinum Sub, as such
terms are defined in the Work Adjustment and Retaining Notification Act
("WARN"), within the past 90 days, nor has there been any event during the past
seven years which requires the giving of notice under WARN.
2.26 Employees; Compensation; Benefit Plans. Platinum has previously given
to Blue Rhino a complete and correct list of the name, age, position, length of
employ, rate of compensation and any incentive compensation arrangements,
bonuses or commissions or fringe or other benefits, of each person who is
employed by or associated with Platinum or any
13
Platinum Sub in any capacity, as well as each other person to whom Platinum or
any Platinum Sub has a policy, practice or obligation to pay or provide
retirement, health, welfare or other benefits of any kind. Except as listed on
Schedule 2.26, there are no Plans, as defined below, contributed to, maintained
or sponsored by Platinum or any Platinum Sub, to which Platinum or any Platinum
Sub is obligated to contribute or with respect to which Platinum or any Platinum
Sub has any liability or potential liability, whether direct or indirect,
including all Plans contributed to, maintained or sponsored by each member of
the controlled group of companies, within the meaning of Sections 414(b),
414(c), and 414(m) of the Code, of which Platinum or any Platinum Sub is a
member to the extent Platinum or any Platinum Sub has any potential liability
with respect to such Plans. For purposes of this Agreement, the term "PLANS"
shall mean: (a) employee benefit plans as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether
or not funded and whether or not terminated; (b) employment agreements; and (c)
personnel policies or fringe benefit plans, policies, programs and arrangements,
whether or not subject to ERISA, whether or not funded, and whether or not
terminated, including, without limitation, stock or Unit bonus, deferred
compensation, pension, severance, bonus, vacation, travel, incentive and health,
disability and welfare plans.
2.27 Absence of Certain Changes. Except as disclosed on Schedule 2.27,
since the date of the most recent Financial Statements, Platinum and each
Platinum Sub has conducted its operations and business only in the ordinary
course consistent with past practices, neither Platinum nor any Platinum Sub
has:
(a) suffered a material adverse change in its business, financial
condition, operating results, earnings, assets, customer, supplier,
employee and sales representative relations, business prospects, business
condition or financing arrangements, or suffered any material casualty loss
or damage to its assets (whether or not covered by insurance);
(b) except for the acquisition of Class B Units at each of Platinum
and the Platinum Subs contemplated by Section 2.33 hereof, redeemed or
repurchased, directly or indirectly, any Units or membership interests or
made any distributions with respect to any Units or membership interests;
(c) issued, sold or transferred any of its notes, bonds or other debt
securities or any equity securities, securities convertible, exchangeable
or exercisable into equity securities, or warrants, options or other rights
to acquire equity securities;
(d) borrowed any amount or incurred or become subject to any
liabilities, except liabilities incurred in the ordinary course of
business;
(e) discharged or satisfied any lien or encumbrance or paid any
obligation or liability, other than liabilities paid in the ordinary course
of business, or prepaid any amount of indebtedness for borrowed money;
14
(f) subjected any portion of its properties or assets to any Lien;
(g) sold, leased, assigned or transferred (including, without
limitation, transfers to Members or any employees or affiliates of
Platinum) a portion of its tangible assets, except for sales of inventory
in the ordinary course of business, or canceled without fair consideration
any debts or claims owing to or held by it;
(h) entered into, amended or terminated any lease, contract, agreement
or commitment, or taken any other action or entered into any other
transaction other than in the ordinary course of business and in accordance
with past custom and practice, or entered into any transaction with any of
its employees, officers, directors or managers;
(i) entered into any other material transaction not in the ordinary
course of business, or materially changed any business practice;
(j) made or granted any bonus or any wage, salary or compensation
increase in amount or frequency inconsistent with historical practices or
adopted any new employee benefit plan or arrangement;
(k) conducted its cash management customs and practices and accounting
methods other than in the usual and ordinary course of business in
accordance with past custom and practice;
(l) made any loans or advances to, or guarantees for the benefit of,
any person or entity;
(m) made any charitable contributions or pledges in excess of $1,000
in the aggregate;
(n) entered into any lease of capital equipment or real estate
involving rental in excess of $5,000 per annum for any of Platinum or a
Platinum Sub, or $50,000 per annum in the aggregate for Platinum and the
Platinum Subs; or
(o) changed or authorized any change in its Certificate of Formation
(or equivalent formation document) or Limited Liability Company Agreement,
or any certificate or authorization to conduct business in a foreign
jurisdiction.
2.28 Product Warranties. Each product manufactured or sold by Platinum and
the Platinum Subs has been in conformity with all applicable contractual
commitments and express warranties, as well as with all warranties implied by
law, of each such entity.
2.29 Product Liability. Neither Platinum nor any Platinum Sub has any
liability (and, to Platinum's knowledge, there is no basis for any present or
future action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand against any of them giving rise to any liability) arising out
of any injury to individuals, including wrongful death, or damage to
15
property as a result of the ownership, possession, or use of any product
manufactured, sold, leased, or delivered by Platinum or any Platinum Sub.
2.30 Related Party Transactions. The Real Property Leases, leases of
Tangible Property, and the Contracts do not include any agreement with, or any
other commitment to: (a) any officer, director or manager of Platinum; (b) any
person related by blood or marriage to any such officer, director or manager;
(c) any Member; or (d) any corporation, partnership, trust or other entity in
which Platinum, any such officer, director or related person or any Member has
an equity or participating interest.
2.31 Brokers. No finder, broker, agent or other intermediary has acted for
or on behalf of Platinum in connection with the transactions contemplated by the
Platinum Agreements, and there are no claims for any brokerage commission,
finder's fee or similar payment due from Platinum.
2.32 Bank Accounts. Schedule 2.32 sets forth: (a) a true and complete list
of the names of each bank, trust company, securities broker and other financial
institution at which Platinum or any Platinum Sub has an account or safe deposit
box or maintains a banking, custodial, trading or other similar relationship;
and (b) a true and complete list and description of each such account, box and
relationship, indicating in each case the account number and the names of the
officers, employees, agents or other representatives of Platinum or the Platinum
Sub having access, signatory power or power to give direction with respect to
such account, box or relationship.
2.33 Acknowledgement of Class B Unit Acquisition. On or before the Closing
Date, Platinum has purchased all of the issued and outstanding Class B units of
Platinum and each Platinum Sub. All holders of such Class B Units are shown on
Schedule 1.7.
2.34 Representations of Platinum Holding Regarding the Stock Consideration.
Platinum Holding represents and warrants to Blue Rhino that:
(a) It is fully aware that the shares of stock constituting the Stock
Consideration have not been and will not be registered under the Securities
Act of 1933, as amended, or under any applicable state securities law, and
that the Stock Consideration is being issued and sold to Platinum Holding
in reliance on the exemptions from the registration requirements of the
Securities Act of 1933 provided by Section 4(2) thereof and Regulation D
promulgated thereunder and in reliance on exemptions from the registration
requirements of certain state securities laws. Platinum Holding is
acquiring the Stock Consideration for its own account as principal and not
with a view to resale or distribution without an effective registration
statement for such Stock Consideration under the Securities Act of 1933,
and any applicable state securities laws, or availability of an exemption
from the registration provisions of the Securities Act of 1933 and
applicable state securities laws. Platinum Holding also understands and
agrees that a legend substantially in the following form will appear upon
the certificate or instruments,
16
as the case may be, evidencing the Stock Consideration, and that the
Company will act in accordance with such legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH STOCK CONSIDERATION UNDER THE
SECURITIES ACT OF 1933, AND ANY APPLICABLE STATE SECURITIES LAWS, OR
AVAILABILITY OF AN EXEMPTION FROM THE REGISTRATION PROVISIONS OF THE
SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS."
(b) It fully understands and agrees that it must bear the economic
risk of investment in the Stock Consideration for an indefinite period of
time because, among other reasons, the Stock Consideration is being issued
and sold to it in reliance on the foregoing exemptions from registration.
Platinum Holding understands and agrees that no part of the Stock
Consideration can be resold unless such stock is registered under the
Securities Act of 1933 or unless an exemption from registration is
available, that Blue Rhino is under no obligation to register the Stock
Consideration or to make an exemption from registration available and that
Blue Rhino has not represented that it will make any attempt to so register
the Stock Consideration or to make such an exemption available.
(c) It acknowledges that the Class B unit holders of Platinum (as
defined in the Operating Agreement of Platinum), along with the Class B
unit holders of each Platinum Sub, have had their respective Class B units
purchased by Platinum on or prior to the Closing for an aggregate purchase
price of Two Hundred Thousand Dollars ($200,000).
(d) It is a corporation or partnership, not formed for the specific
purpose of acquiring the merger consideration, with total assets in excess
of $5,000,000.
(e) Without limiting or diminishing the representations and warranties
of Platinum Holding in foregoing subsections (a) through (d), Platinum
Holding acknowledges and agrees that in no event will it sell, transfer or
otherwise dispose of any of the Stock Consideration (other than pursuant to
an effective registration statement under the Securities Act of 1933 and
any applicable state securities laws), unless and until Platinum Holding or
its proposed transferee shall have (i) notified Blue Rhino and furnished to
Blue Rhino an opinion of counsel, satisfactory to Blue Rhino, to the effect
that such transfer may be made without registration under the Act and all
applicable state securities laws, together with copies of all written
investor representations necessary to such opinion.
17
2.35 Disclosure. No representation, warranty or statement made by Platinum
in any Platinum Agreement, or any document furnished or to be furnished to Blue
Rhino pursuant to any Platinum Agreement, contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
necessary to make the statements contained in this Agreement or such other
document not misleading. The fact that Platinum has delivered copies of certain
documents to Blue Rhino shall not alone constitute disclosure of facts required
to be disclosed on any Schedule to this Agreement, unless such document is
expressly referenced in such Schedule. Receipt by Blue Rhino of such documents
and notice of their contents (other than by reference on a Schedule) shall in no
way limit Platinum's obligations or Blue Rhino's other rights under this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BLUE RHINO AND ACQUISITION SUB
Each of Blue Rhino and Acquisition Sub represents and warrants to
Platinum as follows:
3.1 Capital Structure of Blue Rhino. As of the date hereof, the authorized
capital stock of the Company consists of 100,000,000 shares of common stock and
20,000,000 shares of preferred stock. As of September 30, 2002, there were
14,210,000 shares of common stock issued and outstanding and no shares of
preferred stock issued and outstanding. As of October 31, 2002, there were
options and warrants outstanding issued by the Company to purchase an aggregate
of 3,552,211 and 2,412,348 shares of Common Stock, respectively. Except as set
forth above, there are no options, warrants or other rights (including
conversion, preemptive or other rights) or agreements outstanding to purchase
any of the Company's authorized and unissued capital stock.
3.2 Organization, Standing and Authority of Blue Rhino. Blue Rhino is a
corporation duly organized, validly existing and in good standing under the laws
of the state of Delaware, with full corporate power and authority to own, lease
and operate its properties and assets and to carry on its business as now
conducted, and is duly qualified to do business in the states of the United
States where its ownership or leasing of property or the conduct of its business
requires such qualification and where failure to qualify would have a material
adverse effect on the financial condition, results of operations, or business of
Blue Rhino on a consolidated basis.
3.3 Organization, Standing and Authority of Acquisition Sub. Acquisition
Sub is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Delaware. Acquisition Sub is a wholly
owned subsidiary of Blue Rhino, and has full limited liability company power to
consummate the transactions herein contemplated.
3.4 Authorized and Effective Agreement.
(a) Each of Blue Rhino and Acquisition Sub has all requisite power and
authority to execute, deliver and perform this Agreement and the Exhibits
to this Agreement to which Blue Rhino and Acquisition Sub, as the case may
be, is a party
18
(together with this Agreement, the "BLUE RHINO AGREEMENTS") and to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance of each of the Blue Rhino Agreements, and the
consummation of the transactions contemplated thereby, have been duly and
validly authorized by all necessary corporate action. This Agreement has
been duly executed and delivered by Blue Rhino and Acquisition Sub and
constitutes, and, at Closing, each of the other Blue Rhino Agreements will
be duly executed and delivered by Blue Rhino and Acquisition Sub and
constitute, a valid and binding obligation of Blue Rhino and Acquisition
Sub, enforceable against Blue Rhino and Acquisition Sub in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting the rights and remedies of creditors, and
subject to the further qualification that the remedy of specific
performance or injunctive relief is discretionary with the court before
which any proceeding therefor may be brought.
(b) Neither the execution and delivery by Acquisition Sub or Blue
Rhino of this Agreement, nor the performance of any other obligation of
Acquisition Sub or Blue Rhino under this Agreement, conflicts with, will
result in the breach of, or constitutes a default under, the terms of their
respective Certificates of Incorporation and Formation, or their respective
Bylaws and Limited Liability Company Agreement, any indenture or other
instrument or agreement to which either is a party or by which any of the
assets of either may be bound or affected, or any statute, ordinance,
judgment, order, decree, regulation or rule of any court or governmental
body affecting or relating to either or its assets, or will result in the
creation of any lien upon any assets of either.
3.5 Governmental Approvals. No consent, approval, authorization,
registration or filing with any federal, state or local judicial or governmental
authority or administrative agency is required in connection with the valid
execution and delivery by Blue Rhino or Acquisition Sub of the Blue Rhino
Agreements or the consummation by Blue Rhino of the transactions contemplated in
the Blue Rhino Agreements.
3.6 Brokers. No finder, broker, agent or other intermediary has acted for
or on behalf of Blue Rhino or Acquisition Sub in connection with the
transactions contemplated by this Agreement, and there are no claims for any
brokerage commission, finder's fee or similar payment due from Blue Rhino or
Acquisition Sub.
ARTICLE IV
COVENANTS OF PLATINUM AND PLATINUM HOLDING
Platinum covenants and agrees with Blue Rhino as follows:
4.1 Access and Information. Platinum shall permit Blue Rhino and its
counsel, accountants and other representatives full access during normal
business hours to all the properties, assets, books, records, agreements and
other documents of Platinum. Platinum shall furnish to Blue Rhino and its
representatives all information concerning Platinum as Blue Rhino
19
may reasonably request. Platinum shall permit and facilitate communications
between Blue Rhino and Platinum's suppliers, customers, landlords and other
persons having relationships with Platinum.
ARTICLE V
MUTUAL COVENANTS
Each of Blue Rhino, Platinum and Platinum Holding covenants and agrees with
the other as follows:
5.1 Best Efforts. Each of Blue Rhino and Platinum shall use its best
efforts to make or obtain all consents, approvals, authorizations, registrations
and filings with all federal, state or local judicial or governmental
authorities or administrative agencies as are required in connection with the
consummation of the transactions contemplated by this Agreement. In addition,
Seller shall use its best efforts to obtain as promptly as possible all other
Required Consents.
5.2 Confidentiality. In recognition of the confidential nature of certain
of the information which will be provided to each party by the others, each of
Blue Rhino and Platinum agrees to retain in confidence, and to require its
directors, officers, employees, consultants, professional representatives and
agents (collectively, its "REPRESENTATIVES") to retain in confidence all
information transmitted or disclosed to it by another party to this Agreement,
and further agrees that it will not use for its own benefit and will not use or
disclose to any third party, or permit the use or disclosure to any third party
of, any information obtained from or revealed by the other, except that each of
Blue Rhino and Platinum may disclose the information to those of its
Representatives who need the information for the proper performance of their
assigned duties with respect to the consummation of the transactions
contemplated by this Agreement. In making such information available to its
Representatives, each of Blue Rhino and Platinum shall take any and all
precautions necessary to ensure that its Representatives use the information
only as permitted by this Agreement. Notwithstanding anything to the contrary in
the foregoing provisions, such information may be disclosed: (i) where it is
necessary to any regulatory authorities or governmental agencies; (ii) if it is
required by court order or decree or applicable law; (iii) if it is
ascertainable or obtained from public or published information; (iv) if it is
received from a third party not known to the recipient to be under an obligation
to keep such information confidential; or (v) if the recipient can demonstrate
that such information was in its possession prior to disclosure of the
information in connection with this Agreement. If any party shall be required to
make disclosure of any such information by operation of law, such disclosing
party shall give the party from whom such information was received prior notice
of the making of such disclosure and shall use all reasonable efforts to afford
such other party an opportunity to contest the making of such disclosure. In the
event that the Closing shall not occur, each of Blue Rhino and Platinum shall
immediately deliver, or cause to be delivered, upon request from the party from
which such information was received (without retaining any copies) any and all
documents, statements or other written information obtained from the other that
contain confidential information.
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ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BLUE RHINO AND
ACQUISITION SUB
The obligations of Blue Rhino and Acquisition Sub to consummate the
transactions contemplated by this Agreement are subject to the satisfaction of
the following conditions on or before the Closing Date, unless specifically
waived in writing prior to the Closing Date:
6.1 Representations and Warranties. The representations and warranties of
Platinum contained in this Agreement shall have been true and correct on the
date of this Agreement and shall be true and correct on the Closing Date as
though made on and as of the Closing Date.
6.2 Compliance with Covenants. Platinum and Platinum Holding shall have
duly performed and complied with all covenants, agreements and obligations
required by this Agreement to be performed or complied with by each on or prior
to the Closing.
6.3 Absence of Litigation. No action or proceeding shall be pending or
threatened by or before any court or other governmental body or agency seeking
to restrain, prohibit or invalidate the transactions contemplated by this
Agreement or which would adversely affect the right of Blue Rhino to operate or
control Platinum after the Closing Date.
6.4 Absence of Change. Between the date of this Agreement and the Effective
Time, no material adverse change shall have occurred in the business, assets,
operations, prospects or financial or other condition of Platinum, nor shall
there have occurred any material casualty loss or destruction of, or damage to,
any of Platinum's assets.
6.5 Consents and Approvals. All: (a) Required Consents; (b) licenses; (c)
other orders or notifications of, or registrations, declarations or filings
with, or expiration of waiting periods imposed by, any applicable governmental
or judicial authority; and (d) consents, approvals, authorizations or
notifications of any other third parties, all as required in connection with
consummation of the transactions contemplated by this Agreement, including the
ownership and operation of Platinum by Blue Rhino, shall have been made or
obtained or shall have occurred. Any condition or restriction imposed in
connection with any of the foregoing shall not have a material adverse effect on
the Blue Rhino's right to operate or control Platinum after the Effective Time.
6.6 Removal of Liens. All Liens, other than those identified on Schedule
2.11 or those related to the debt referenced in Section 1.7(a)(ii), shall have
been paid at closing or sufficient action taken to cause their removal, and
Platinum shall have provided evidence satisfactory to Blue Rhino of such action.
6.7 Purchase of Class B Units. Platinum shall have acquired all of the
issued and outstanding Class B Units of Platinum and each Platinum Subs on or
prior to the Closing Date, and there shall be no claims, pending or threatened,
related to such acquisition. The purchase agreement for each Class B Unit holder
shall be in the form attached as Exhibit B.
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6.8 Legal Opinion. Blue Rhino shall have received from House & Xxxxxxx,
PLLC, counsel to Platinum, an opinion, dated the Closing Date, in the form of
Exhibit C.
6.9 No Claim Regarding Interests. No claim shall have been made or
threatened that any person or entity (other than Members): (i) is the holder or
beneficial owner of, or has the right to acquire or to obtain beneficial
ownership of, any of the Units or any other voting, equity or ownership interest
in, Platinum; or (ii) is entitled to all or any portion of the Merger
Consideration.
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PLATINUM
The obligations of Platinum to consummate the transactions contemplated by
this Agreement are subject to the satisfaction of each of the following
conditions on or before the Closing Date, unless specifically waived in writing
by Platinum prior to the Closing:
7.1 Representations and Warranties. The representations and warranties of
Blue Rhino contained in this Agreement shall have been true and correct on the
date of this Agreement, and shall be true and correct on the Closing Date as
though made on and as of the Closing Date.
7.2 Compliance with Covenants. Blue Rhino shall have duly performed and
complied with all covenants, agreements and obligations required by this
Agreement to be performed or complied with by it on or before the Closing Date.
7.3 Absence of Litigation. No action or proceeding shall be pending by or
before any court or other governmental body or agency seeking to restrain,
prohibit or invalidate the transactions contemplated by this Agreement.
ARTICLE VIII
CLOSING DELIVERIES
8.1 Deliveries by Platinum. At the Closing, Platinum shall deliver, or
cause to be delivered, to Blue Rhino the following:
(a) all bank books, financial and bank records, bookkeeping and
accounting records, copies of all Tax Returns and amendments to all of the
foregoing, corporate minute books, stock ledgers and all other books and
records of or relating to Platinum, certified by Platinum to be true,
correct and complete as of the Closing Date (including the same listed
items for each Platinum Sub);
(b) a certificate signed by the Manager of Platinum confirming the
satisfaction of the conditions set forth in Sections 6.1 and 6.2 as to
representations, warranties and covenants and Section 6.4 as to absence of
changes;
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(c) a copy of all necessary limited liability company resolutions
authorizing the execution, delivery and performance of this Agreement by
Platinum, and the consummation of the transactions contemplated in this
Agreement, all accompanied by the certification of the Manager of Platinum
to the effect that such resolutions are in full force and effect and have
not been amended, modified or rescinded;
(d) For Platinum and each Platinum Sub, a good standing certificate
from the Secretary of State of Delaware;
(e) the Representation Letters duly executed by the Members;
(f) copies of the purchase agreements executed by all Class B Unit
holders of Platinum and each Platinum Sub as contemplated by Section 6.7;
(g) the legal opinion referred to in Section 6.8; and
(h) evidence of that all Required Consents have been obtained or
satisfied.
8.2 Deliveries by Blue Rhino. At the Closing, Blue Rhino shall deliver or
cause to be delivered to Platinum (except as provided in Section 8.2(c))the
following:
(a) a certificate of an officer of Blue Rhino confirming the
satisfaction of the conditions set forth in Sections 7.1 and 7.2 as to
representations, warranties and covenants;
(b) a copy of all corporate resolutions authorizing the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated in this Agreement, accompanied by the
certification of the Secretary of Blue Rhino to the effect that such
resolutions are in full force and effect and have not been amended,
modified or rescinded; and
(c) the Cash Consideration in accordance with the terms and subject to
the restrictions and adjustments set forth in Section 1.7(a)(ii).
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification by Platinum and the Members. Platinum Holding, the sole
member of Platinum after giving effect to the transactions contemplated by
Section 6.7 hereof, shall indemnify, defend and hold harmless Blue Rhino and its
officers, directors and affiliates (the "Blue Rhino Indemnitees") from, against
and with respect to any and all loss, damage, claim, obligation, liability, cost
and expense (including, without limitation, reasonable attorneys' fees and costs
and expenses incurred in investigating, preparing, defending against or
prosecuting any litigation, claim, proceeding or demand), of any kind or
character, including
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without limited, personal injury, wrongful death or property damage (a "LOSS"),
arising out of or in connection with any of the following:
(a) any breach of any of the representations or warranties of Platinum
contained in or made pursuant to this Agreement or any transfer instrument
or other certificate or document delivered by Platinum pursuant to this
Agreement;
(b) any failure by Platinum to perform or observe, or to have
performed or observed, in full, any covenant, agreement, obligation or
condition to be performed or observed by each pursuant to this Agreement;
(c) any product sold, shipped or manufactured, or any services
provided, by Platinum prior to the Effective Time; or
(d) any use, release, threatened release, emission, generation,
storage, transportation, disposal or arrangement for the disposal of
Hazardous Materials by Platinum, including, without limitation, the cost of
any environmental response action or liability under the Comprehensive
Environmental Response, Compensation and Liability Act, whether such Loss
accrues, is required or is necessary prior to the Closing Date, to the full
extent that such Loss is attributable, in whole or in part, directly or
indirectly, to the presence, use, emission, generation, storage,
transportation, release, threatened release, disposal or arrangements for
disposal of Hazardous Materials by any person on any of the properties of
Platinum or on any other properties to which Platinum or their affiliates
have sent or arranged for the disposal of Hazardous Materials prior to the
Closing Date or the exposure of any person, including, without limitation,
any third party and any employee or former employee of Platinum, to any
Hazardous Material present, or previously present, in or on any of the
Leased Real Property. The foregoing right of indemnity against Platinum
shall not limit Blue Rhino's or any other indemnified person's rights of
recovery against Platinum or any other person under any Environmental Law
or any other law, including, without limitation, the Comprehensive
Environmental Response, Compensation Liability Act and the North Carolina
Oil Pollution and Hazardous Substances Control Act.
9.2 Indemnification by Blue Rhino. If the Merger is not consummated, Blue
Rhino shall indemnify, defend and hold harmless Platinum from, against and with
respect to any Loss arising out of or in connection with any of the following:
(a) any breach of any of the representations and warranties of Blue
Rhino contained in or made pursuant to this Agreement; or
(b) any failure by Blue Rhino to perform or observe, or to have
performed or observed, in full, any covenant, agreement or condition to be
performed or observed by it pursuant to this Agreement.
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9.3 Indemnification by Blue Rhino Regarding Acquisition Sub. If the Merger
is not consummated, Blue Rhino shall indemnify, defend and hold harmless
Platinum from, against and with respect to any Loss arising out of or in
connection with any of the following:
(a) any breach of any of the representations and warranties of
Acquisition Sub contained in or made pursuant to this Agreement; or
(b) any failure by Acquisition Sub to perform or observe, or to have
performed or observed, in full, any covenant, agreement or condition to be
performed or observed by Acquisition Sub pursuant to this Agreement.
9.4 Notice of Claim. Any party seeking to be indemnified hereunder (the
"INDEMNIFIED PARTY") shall promptly notify the party from whom indemnity is
sought (the "INDEMNITY OBLIGOR") in writing of any claim for recovery,
specifying in reasonable detail the nature of the Loss. The Indemnified Party
shall provide to the Indemnity Obligor as promptly as practicable thereafter all
information and documentation reasonably requested by the Indemnity Obligor to
verify the claim asserted. The failure of the Indemnified Party to notify the
Indemnity Obligor on a timely basis or at all will not relieve the Indemnity
Obligor of any liability that it may have to the Indemnified Party, except to
the extent that the Indemnified Party demonstrates that the defense of such
action is prejudiced by such failure.
9.5 Defense. Whether or not the Indemnity Obligor is permitted to employ
counsel to defend any claim for a Loss, the Indemnified Party shall have the
right to employ separate counsel and to participate in such action at the
Indemnity Obligor's reasonable expense. All the parties to this Agreement shall
cooperate in the defense or prosecution of such claim and shall furnish such
records, information and testimony and shall attend such conferences, discovery
proceedings and trials as may be reasonably requested in connection therewith.
The Indemnity Obligor shall not be liable for any settlement of any such claim
effected without its prior written consent, which shall not be unreasonably
withheld.
9.6 Other Remedies. The foregoing indemnification provisions are in
addition to, and not in derogation or limitation of, any statutory, equitable or
common law remedy any party may have as a result of a Loss.
ARTICLE X
TERMINATION
10.1 Termination. This Agreement may be terminated at any time prior to the
Closing by:
(a) the mutual written consent of Platinum and Blue Rhino;
(b) Platinum (if Platinum is not then in breach of any material term
of this Agreement), if Blue Rhino shall (i) fail to perform or observe any
covenant, agreement or condition contained in this Agreement required to be
performed or observed on or prior
25
to the Closing Date; or (ii) breach any of its representations or
warranties contained in this Agreement, which failure or breach is not
cured within ten (10) days after Platinum have notified Blue Rhino of its
intent to terminate this Agreement pursuant to this Section 10.1(b);
(c) Blue Rhino (if Blue Rhino is not then in breach of any term of
this Agreement), if Platinum shall (i) fail to perform or observe any
covenant, agreement or condition contained in this Agreement required to be
performed or observed on or prior to the Closing Date; or (ii) breach any
of its representations or warranties contained in this Agreement, which
failure or breach is not cured within ten days after Blue Rhino has
notified Seller of its intent to terminate this Agreement pursuant to this
Section 10.1(c);
(d) Platinum or by Blue Rhino, if there shall be any order, writ,
injunction or decree of any court or governmental or regulatory agency
binding on Platinum or Blue Rhino, which prohibits or restrains any party
from consummating the transactions contemplated by this Agreement; or
(e) By Blue Rhino, by giving written notice to Seller on or before ten
(10) days following the date of this Agreement, if Blue Rhino is not
reasonably satisfied with the results of its continuing business, legal and
accounting due diligence review concerning Platinum.
10.2 Effect on Obligations. Termination of this Agreement pursuant to this
Article shall terminate all obligation of the parties hereunder, except for the
obligations under this Section 10.2 and Sections 11.2 (with respect to
expenses), 11.3 (with respect to publicity) and 5.2 (with respect to
confidentiality); provided, however, that termination pursuant to Section
10.1(b) or Section 10.1(c) shall not relieve the defaulting or breaching party
from any liability to any other party under this Agreement.
ARTICLE XI
MISCELLANEOUS
11.1 Survival of Representations. All representations and warranties of the
parties contained in this Agreement or otherwise made in writing in connection
with the transactions contemplated by this Agreement shall survive the execution
and delivery of this Agreement for a period of one (1) year, except for the
representations in Sections 2.5, 2.22, and 2.23, which shall each survive until
the expiration of any applicable statute of limitations. The right to
indemnification, payment of damages, or other remedy based on the
representations are warranties of Platinum and on covenants, agreements, and
obligations herein of Platinum will not be affected by any investigation
conducted with respect to, or any knowledge acquired (or capable of being
required) at any time, whether before or after the execution and delivery of
this Agreement or the Closing Date, with respect to the accuracy or inaccuracy
of or compliance with any such representation, warranty, covenant, agreement or
obligation. The waiver of any condition based on the accuracy of any
representation or warranty, or on the performance of or
26
compliance with any covenant, agreement, or obligation, will not affect the
right to indemnification, payment of damages, or other remedy based on such
representation, warranty, covenant, agreement or obligation.
11.2 Expenses. Except as otherwise provided herein, all costs and expenses
incurred in connection with this Agreement and the transactions contemplated by
this Agreement shall be paid by the party incurring such expense, whether or not
the Merger is consummated. Platinum's expenses (including any legal fees or
expenses) in connection with this Agreement or any of the transactions
contemplated by this Agreement shall be included in the calculation of the
Aggregate Negative Working Capital pursuant to Section 1.8 hereof.
11.3 Publicity. Each of Platinum and Blue Rhino agrees it will not make any
press releases or other announcements prior to the Closing with respect to the
transactions contemplated by this Agreement, except as required by applicable
law or regulation, without the prior approval of the other party.
11.4 Best Efforts. Each party to this Agreement agrees to use its best
efforts to satisfy the conditions to the Closing set forth in this Agreement and
otherwise to consummate the transactions contemplated by this Agreement.
11.5 Notices. All notices, demands and other communications made hereunder
shall be in writing and shall be given either by personal delivery, by
nationally recognized overnight courier (with charges prepaid) or by facsimile
(with telephone confirmation), and shall be deemed to have been given or made
when personally delivered, the day following the date deposited with such
overnight courier service or when transmitted to facsimile machine and confirmed
by telephone, addressed to the respective parties at the following addresses (or
such other address for a party as shall be specified by like notice):
If to Platinum:
Platinum Propane, L.L.C
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx-Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxx, Esq.
0000 Xxxxx Xxxxx
Xxxxxxx-Xxxxx, XX 00000
Fax: 000-000-0000
If to Blue Rhino or to Acquisition Sub:
Blue Rhino Corporation
27
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Chief Executive Officer
Fax: 000-000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax: 000-000-0000
11.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which, taken
together shall constitute one and the same instrument.
11.7 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective successors and
permitted assigns. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties to this Agreement
without the prior written consent of all other parties to this Agreement, and
any purported assignment without such consent shall be void.
11.8 Third Party Beneficiaries. Except as otherwise specifically provided
in this Agreement, none of the provisions of this Agreement or any document
contemplated by this Agreement is intended to grant any right or benefit to any
person or entity that is not a party to this Agreement.
11.9 Headings. The article and section headings contained in this Agreement
are solely for the purpose of reference, are not part of this Agreement and
shall not in any way affect the meaning or interpretation of this Agreement.
11.10 Recitals. The recitals set forth at the beginning of this Agreement
are incorporated by reference in, and made a part of, this Agreement.
11.11 Amendments. Any waiver, amendment, modification or supplement of or
to any term or condition of this Agreement shall be effective only if in writing
and signed by all parties hereto, and the parties to this Agreement waive the
right to amend the provisions of this Section orally.
11.12 Specific Performance. Platinum acknowledges that, if it fails to
consummate the transactions contemplated by this Agreement, such failure will
cause irreparable harm to Blue Rhino for which there will be no adequate remedy
at law. Blue Rhino shall be entitled, in addition to its other remedies at law,
to specific performance of this Agreement if Platinum shall,
28
unless as specifically permitted hereunder, refuse to consummate the
transactions contemplated by this Agreement.
11.13 Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without regard to conflicts of laws principles.
11.14 Jurisdiction. Each of the parties to this Agreement submits to the
jurisdiction of any state or federal court sitting in North Carolina, in any
action or proceeding arising out of or relating to this Agreement and agrees
that all claims in respect of such action or proceeding may be heard and
determined in any such court.
11.15 Remedies. In the event litigation shall be necessary to enforce,
interpret or rescind the provisions of this Agreement or any related matter, the
prevailing party shall be entitled to recover from the adverse party, in
addition to any other relief, the prevailing party's reasonable attorneys' fees
for services before trial, at trial, and on any subsequent appeal by the adverse
party.
11.16 Severability. In the event that any provision in this Agreement shall
be determined to be invalid, illegal or unenforceable in any respect, the
remaining provisions of this Agreement shall not be in any way impaired, and the
illegal, invalid or unenforceable provision shall be fully severed from this
Agreement and there shall be automatically added a replacement provision as
similar in terms and intent to such severed provision as may be legal, valid and
enforceable.
11.17 Entire Agreement. This Agreement, together with the Schedules and
Exhibits hereto and the documents and instruments delivered pursuant hereto,
constitute the entire contract between the parties to this Agreement pertaining
to the subject matter of this Agreement, and supersede all prior and
contemporaneous agreements and understandings between the parties with respect
to such subject matter.
11.18 Construction. Each party to this Agreement and its counsel have
reviewed and revised this Agreement. The normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement or of any amendments,
schedules or exhibits to this Agreement. The parties to this Agreement intend
that each representation, warranty and covenant in this Agreement shall have
independent significance. If any party has breached any representation, warranty
or covenant in any respect, the fact that there exists another representation,
warranty or covenant relating to the same subject matter (regardless of the
relative levels of specificity) which the party has not breached shall not
detract from or mitigate the fact that the party is in breach of the first
representation, warranty or covenant.
11.19 Time of Essence. With regard to all dates and time periods set forth
or referred to in this Agreement, time is of the essence.
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11.20 Waiver. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be executed in counterparts by their duly
authorized officers, all as of the day and year first above written.
PLATINUM PROPANE, L.L.C.
By: Platinum Propane Holding, LLC
Sole Member/Manager
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Xxxxx Xxxxxxx
Manager
PLATINUM PROPANE HOLDING, L.L.C.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
Manager
PLATINUM ACQUISITION, LLC
By: Blue Rhino Corporation
Sole Member/Manager
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Xxxx Xxxxxxxxx
Chief Financial Officer
BLUE RHINO CORPORATION
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Xxxx Xxxxxxxxx
Chief Financial Officer
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