EXHIBIT 99.10
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is dated as of February 8,
2004, by and among FCI Trading Corp., a Delaware corporation ("Parent"), and the
undersigned stockholders of Blue Rhino Corporation (individually, a
"Stockholder" and collectively, the "Stockholders").
W I T N E S S E T H:
WHEREAS, the Parent is a party, along with other entities, to that
certain Agreement and Plan of Merger dated as of the date hereof (the "Merger
Agreement"), which provides, among other things, that a subsidiary of the Parent
will merge with and into Blue Rhino Corporation (the "Company") with the Company
continuing as the surviving corporation (the "Merger");
WHEREAS, as of the date hereof, each of the Stockholders is the record
or beneficial owner of, and has the right, acting alone, to vote and dispose of,
the number of shares of capital stock in the Company (the "Company Stock") set
forth opposite his name on Schedule I hereto; and
WHEREAS, as an inducement and a condition to Parent entering into the
Merger Agreement and incurring the obligations set forth therein, Parent has
required that the Stockholders enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Certain Definitions. Capitalized terms used herein but not
defined shall have the respective meanings ascribed to them in the Merger
Agreement. In addition, for purposes of this Agreement:
"Affiliate" shall mean, with respect to any specified Person,
any Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, the Person specified.
"Beneficially Own" or "Beneficial Ownership" with respect to
any securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 promulgated under the
Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting
of the same securities by the same holder, securities Beneficially
Owned by a Person includes securities Beneficially Owned by all
Affiliates of such Person and all other Persons with whom such Person
would constitute a "group" within the meaning of Section 13(d) of the
Exchange Act and the rules promulgated thereunder.
"Company Stock" shall have the meaning set forth in the
recitals to this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
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"Merger" shall have the meaning set forth in the recitals to
this Agreement.
"Owned Shares" shall mean, with respect to each Stockholder,
the shares of Company Stock Beneficially Owned by such Stockholder on
the date hereof, together with any other shares of Company Stock, or
any other securities of the Company entitled, or which may be entitled,
to vote generally in the election of directors and any securities
convertible into or exercisable or exchangeable for such securities
(whether or not subject to contingencies with respect to any matter or
proposal submitted for the vote or consent of stockholders of the
Company), now or hereafter Beneficially Owned by each such Stockholder.
"Person" shall mean an individual, corporation, partnership,
limited liability corporation, joint venture, association, trust,
unincorporated organization or other entity.
"Subject Company" shall have the meaning set forth in Section
2.
"Transfer" shall mean, with respect to a security, the sale,
transfer, pledge, hypothecation, encumbrance, assignment or disposition
of such security or the Beneficial Ownership thereof, the offer to make
such a sale, transfer or other disposition, and each option, agreement,
arrangement or understanding, whether or not in writing, to effect any
of the foregoing. As a verb, "Transfer" shall have a correlative
meaning.
2. Voting of Owned Shares; Proxy.
(a) Each Stockholder hereby agrees that, during any time
prior to the Effective Time while this Agreement is in effect, at any meeting
(whether annual or special, and whether or not an adjourned or postponed
meeting) of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall vote (or
cause to be voted), in his capacity as a stockholder of the Company, all Owned
Shares: (i) in favor of the Merger, the Merger Agreement (as amended from time
to time) and the transactions contemplated by the Merger Agreement; (ii) against
any action or agreement that would (A) result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or of the Stockholders under this Agreement or (B)
impede, interfere with, delay, postpone, or adversely affect the Merger or the
transactions contemplated by the Merger Agreement or this Agreement; and (iii)
against the following actions (other than the Merger and the transactions
contemplated by the Merger Agreement and this Agreement): (I) any extraordinary
corporate transaction, such as a recapitalization, merger, consolidation or
other business combination involving the Company and/or any of its Subsidiaries
(the "Subject Companies"), (II) any sale, lease or transfer of a material amount
of the assets or business of the Subject Companies; and (III) any other action
which is intended or could reasonably be expected to impede, interfere with,
delay, postpone, discourage or adversely affect the Merger or any of the
transactions contemplated by the Merger Agreement or this Agreement or the
contemplated economic benefits of any of the foregoing; provided, that nothing
in the foregoing provisions of this Section 2 shall be deemed to limit any
Stockholder's right, upon instruction from the Parent, to vote for the
adjournment or postponement of any meeting of the stockholders of the Company.
The Stockholders, in their capacity as Stockholders of the Company, shall not
enter into any agreement, arrangement or
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understanding with any Person the effect of which would be inconsistent with or
violative of the provisions and agreements contained in or referenced by this
Section 2(a).
(b) Each Stockholder agrees to grant, at the request of
the Company, upon the execution and delivery of the Merger Agreement, a proxy to
vote the Owned Shares as indicated in subsection 2(a) above. Each Stockholder
intends such proxy to be irrevocable and coupled with an interest and will take
such further action or execute such other instruments as may be necessary to
effectuate the intent of this proxy and hereby revokes any proxy previously
granted by him with respect to the Owned Shares; provided, however, that such
proxy shall terminate and be deemed revoked upon the termination of this
Agreement pursuant to Section 3 hereof.
(c) Stockholder's obligations hereunder are undertaken
strictly in Stockholder's capacity as a stockholder of the Company, and no such
obligation shall affect Stockholder or any of Stockholder's affiliates in their
capacity as a director or officer of the Company or as a fiduciary to any other
person (other than any of the stockholders of the Company), or shall be
construed to require Stockholder to take, or in any way limit any action that
Stockholder may take, to discharge Stockholder's duties in such other capacity.
3. Termination. This Agreement shall terminate upon the earlier
to occur of (i) the consummation of the transactions contemplated by the Merger
Agreement and (ii) the termination of the Merger Agreement in accordance with
its terms.
4. Restrictions on Transfer; Other Proxies. The Stockholders
shall not, directly or indirectly; (i) Transfer to any Person any or all Owned
Shares; (ii) grant any proxies or powers of attorney, deposit any Owned Shares
into a voting trust or enter into a voting agreement, understanding or
arrangement with respect to such Owned Shares; or (iii) take any action in their
capacity as Stockholders of the Company that would make any representation or
warranty of the Stockholders contained herein untrue or incorrect or would
result in a breach by the Stockholders of their obligations under this Agreement
or a breach by the Company of its obligations under the Merger Agreement.
Nothing in this Section 4 shall be deemed to limit rights of any persons other
than the Stockholders.
5. Representations and Warranties of the Stockholders. Each
Stockholder hereby represents and warrants to Parent as follows, solely with
respect to himself:
(a) Stockholder has all necessary power and authority to
execute and deliver this Agreement and to perform their respective obligations
hereunder. If Stockholder is an individual, Stockholder has the legal capacity
to execute and deliver this Agreement. If Stockholder is an entity, the
execution and delivery by such Stockholder of this Agreement and the performance
by the Stockholder of its obligations hereunder have been duly and validly
authorized by the Board of Directors of Stockholder or other governing body and
no other corporate or other proceedings on the part of Stockholder are necessary
to authorize the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby.
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(b) This Agreement has been duly and validly executed and
delivered by Stockholder and, assuming the due authorization, execution and
delivery hereof by Parent, constitutes a valid and binding obligation of
Stockholder, enforceable against it in accordance with its terms (subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law)).
(c) Stockholder is the record and Beneficial Owner of all
of the Owned Shares indicated opposite such Stockholder's name on Schedule I
hereto, which constitute all of the Owned Shares Beneficially Owned by such
Stockholder, free and clear of all liens, pledges, charges, claims, security
interests and other encumbrances. Other than as provided in this Agreement and
applicable securities laws, there are no restrictions on the voting rights or
right of disposition pertaining to such Owned Shares.
(d) Neither the execution and delivery of this Agreement
nor the consummation by the Stockholder of the transactions contemplated hereby
will conflict with or constitute a violation of or default under any contract,
commitment, agreement, arrangement or restriction of any kind to which
Stockholder is a party or by which Stockholder is bound.
6. Representations and Warranties of Parent. Parent hereby
represents, warrants and covenants to the Stockholders as follows:
(a) Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Parent
has all necessary corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The execution and delivery
by Parent of this Agreement and the performance by Parent of its obligations
hereunder have been duly and validly authorized by the Board of Directors of
Parent and no other corporate proceedings on the part of Parent are necessary to
authorize the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and
delivered by Parent and, assuming the due authorization, execution and delivery
hereof by the Stockholders, constitutes a valid and binding obligation of
Parent, enforceable against Parent in accordance with its terms (subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law)).
(c) Neither the execution and delivery of this Agreement
nor the consummation by Parent of the transactions contemplated hereby will
conflict with or constitute a violation of or default under any contract,
commitment, agreement, arrangement or restriction of any kind to which Parent is
a party or by which Parent is bound.
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7. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
delivery such additional documents and take all such further lawful action as
may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
8. Miscellaneous.
(a) This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties, and there are no warranties,
representations or other agreements between the parties in connection with the
subject matter hereof except as set forth specifically herein or contemplated
hereby. Each party to this Agreement agrees that (i) no other party to this
Agreement (including its agents and representatives) has made any
representation, warranty, covenant or agreement to or with such party relating
to the transactions contemplated hereby, other than those expressly set forth in
this Agreement and the agreements referenced herein, and (ii) such party has not
relied upon any representation, warranty, covenant or agreement relating to the
transactions contemplated hereby, other than those referred to in clause (i)
above.
(b) The Stockholders agree that this Agreement and the
respective rights and obligations of the Stockholders hereunder shall attach to
any shares of Company Stock, any securities convertible into such shares, and
any other securities of the Company entitled, or which may be entitled, to vote
generally in the election of directors and any securities convertible into or
exercisable or exchangeable for such securities (whether or not subject to
contingencies with respect to any matter or proposal submitted for the vote or
consent of the stockholders of the Company), that may become Beneficially Owned
by such Stockholders.
(c) Except as otherwise provided in this Agreement, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
(d) This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns, but neither this Agreement nor any of then
rights, interests or obligations hereunder shall be assigned by any party
(whether by operation of law or otherwise) without the prior written consent of
each other party to this Agreement; provided, that Parent may assign its rights
and obligations hereunder to any subsidiary or Affiliate of Parent, but no such
assignment shall relieve Parent of its obligations hereunder. This Agreement
shall be binding upon and inure solely to the benefit of each party hereto, and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other Person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
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(e) This Agreement may not be amended, changed,
supplemented, or otherwise modified or terminated, except upon the execution and
delivery of a written agreement executed by each of the parties hereto. The
failure of a party to exercise any right or remedy shall not be deemed or
constitute a waiver of such right or remedy in the future. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof (regardless of whether similar), nor shall any such
waiver constitute a continuing waiver unless otherwise expressly provided by
such other party hereunder, but any such waiver shall be effective only if in
writing executed by the waiving party.
(f) Any notice, request, instruction, correspondence or
other document to be given hereunder by either party to the other (herein
collectively called "Notice") shall be in writing and delivered in person or by
courier service requiring acknowledgment of receipt of delivery or mailed by
certified mail, postage prepaid and return receipt requested, or by telecopier,
as follows:
If to a Stockholder, addressed to the address set forth on
Schedule I attached hereto.
If to Parent, addressed to:
FCI Trading Corp.
Xxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Xxxxxx Vice President, Corporate Development
Telecopy: 000-000-0000
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx X. Xxxx
Telecopy: (000) 000-0000
Notice given by personal delivery, courier service or mail shall be effective
upon actual receipt. Notice given by telecopier shall be confirmed by
appropriate answer back and shall be effective upon actual receipt if received
during the recipient's normal business hours, or at the beginning of the
recipient's next business day after receipt if not received during the
recipient's normal business hours. Any party may change any address to which
Notice is to be given to it by giving Notice as provided above of such change of
address.
(g) If any provision of the Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by decree of a court of last resort, the parties hereto
shall promptly meet and negotiate substitute provisions for those rendered or
declared illegal or unenforceable, but all of the remaining provisions of this
Agreement shall remain in full force and effect.
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(h) Each of the parties hereto acknowledges and agrees
that in the event of any breach of this Agreement, each non-breaching party
would be irreparably and immediately harmed and could not be made whole by
monetary damages. It is accordingly agreed that the parties hereto (i) will
waive, in any action for specific performance, the defense of adequacy of a
remedy at law and (ii) shall be entitled, in addition to any other remedy to
which they may be entitled at law or in equity, to compel specific performance
of this Agreement in any action instituted in any state or federal court sitting
in Delaware.
(i) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise of any thereof by any party
shall not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware (regardless of the laws that
might otherwise govern under applicable principles of conflicts of law) as to
all matters, including maters of validity, construction, effect, performance and
remedies.
(k) The headings of the sections herein are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
(l) This Agreement may be executed in multiple
counterparts each of which shall be deemed an original and all of which shall
constitute one instrument.
Unless otherwise noted, all section references in this Agreement are
references to the specified section of this Agreement.
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IN WITNESS WHEREOF, Parent and each of the Stockholders have caused
this Agreement to be duly executed as of the day and year first above written.
FCI TRADING CORP.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
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STOCKHOLDERS:
/s/ Xxxxx X. Xxxx
--------------------------------------------
Xxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxxxx
/s/ Xxxxxxx X. XxXxxxxxx
--------------------------------------------
Xxxxxxx X. XxXxxxxxx
CAMDEN PARTNERS STRATEGIC FUND II-A, L.P.
By: Camden Partners Strategic II, LLC
its general partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
General Partner
CAMDEN PARTNERS STRATEGIC FUND II-B, L.P.
By: Camden Partners Strategic II, LLC
its general partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
General Partner
STRATEGIC ASSOCIATES, L.P.
By: Xxxxxx, Xxxxxxx Strategic Partners, L.P.
its general partner
By: /s/Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
General Partner
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SCHEDULE I
STOCKHOLDER ADDRESS FOR NOTICE NUMBER OF SHARES OF COMPANY STOCK
----------- ------------------ ---------------------------------
Xxxxx X. Xxxx c/o Blue Rhino Corporation 1,262,714 shares of Common Stock, which
000 Xxxxxxxxx Xxxxx Xxxxx includes:
Xxxxxxx-Xxxxx, XX 00000
- 1,039,026 shares owned by Xx. Xxxx,
Telephone: 000-000-0000 - 216,127 shares owned by American Oil and
Gas, Inc., and
Facsimile: 000-000-0000 - 7,561 shares held by Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxxxxx c/o Blue Rhino Corporation 1,873,540 shares of Common Stock, which
000 Xxxxxxxxx Xxxxx Xxxxx includes:
Xxxxxxx-Xxxxx, XX 00000
- 1,254,413 shares owned by Xx. Xxxxxxxxxx,
Telephone: 000-000-0000 - 38,000 shares owned by AJF 1999
Declaration of Trust
Facsimile: 000-000-0000 - 216,127 shares owned by American Oil and
Gas, Inc.,
- 351,769 shares owned by Platinum Venture
Partners I, LP
- 1,890 shares owned by Xxxxxxxx Xxxxxxxxxx,
- 1,890 shares owned by Xxxxxxxxx Xxxxxxxxxx
Trust
- 1,890 shares owned by Xxxxx Xxxxxxx Trust,
and
- 7,561 shares owned by Xxxxxxxx Xxxxxxxxxx
Xxxxxxx X. XxXxxxxxx 000 X. Xxxxxxxx Xxxxx 337,550 shares of Common Stock
Xxxxxxx-Xxxxx, X.X. 00000
Camden Partners Strategic Fund Camden Partners Holdings, LLC 1,406,620 shares of Common Stock
II-A, L.P. Attn: Xxxxxx X. Xxxxxx
Member
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
Camden Partners Strategic Fund Camden Partners Holdings, LLC 83,444 shares of Common Stock
II-A, L.P. Attn: Xxxxxx X. Xxxxxx
Member
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
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Strategic Associates, L.P. Camden Partners Holdings, LLC 46,084 shares of Common Stock
Attn: Xxxxxx X. Xxxxxx
Member
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
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