REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of April 19, 2002, by and among Blue Rhino Corporation, a
Delaware corporation (the "Company"), and those persons named on Schedule 1
hereto (the "Purchasers").
This Agreement is made pursuant to the Stock Purchase Agreement, dated
as of April 19, 2002 (the "Stock Purchase Agreement"), by and between the
Company and the Purchasers, pursuant to which the Company has agreed to issue
and sell 1,500,000 shares of its common stock, $0.001 par value per share (the
"Common Stock" or the "Shares"), to the Purchasers. The Shares are being
offered and sold to the Purchasers without registration under the Securities
Act of 1933, as amended (the "Securities Act"), in reliance upon the exemption
from registration provided by Section 4(2) of the Securities Act and the
provisions of Rule 506 of Regulation D promulgated under the Securities Act. In
order to induce the Purchasers to enter into the Stock Purchase Agreement, the
Company has agreed to provide to the Purchasers (and their direct and indirect
transferees, if any) the registration rights set forth in this Agreement with
respect to the resale of the Shares. The execution and delivery of this
Agreement is a condition to the Closing under the Stock Purchase Agreement.
Capitalized terms used but not defined herein shall have the meaning provided
in the Stock Purchase Agreement.
In consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
SECTION 1
REGISTRATION RIGHTS
1.1. FILING OF FORM S-3 RESALE REGISTRATION STATEMENT. As soon as
practicable and within 10 business days after the closing of the sale of Shares
under the Stock Purchase Agreement, the Company shall file with the Securities
and Exchange Commission (the "SEC" or the "Commission") a registration
statement on Form S-3 pursuant to Rule 415 under the Securities Act, or, in the
event that Form S-3 is unavailable to the Company, a registration statement on
such other SEC Form that is available to the Company (together with any
exhibits, amendments or supplements thereto, and any documents incorporated by
reference therein, the "Registration Statement"), with respect to the resale of
the Shares, and, to the extent permitted by Rule 416 under the Securities Act,
any securities of the Company issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of, the Shares. The securities
described in the preceding sentence are collectively referred to herein as the
"Registrable Securities"; provided, that the term "Registrable Securities"
shall not include securities subject to the Registration Statement or
securities transferred to a person other than a permitted transferee.
1.2. EFFECTIVENESS OF REGISTRATION STATEMENT. The Company shall,
subject to Section 6 hereof, use its commercially reasonable best efforts to
cause the Registration Statement to become effective within 45 days after the
filing thereof, and shall use its commercially reasonable best efforts to keep
the Registration Statement continuously effective from the date such
Registration Statement becomes effective until the earlier of (i) the date on
which all Securities have been resold under such Registration Statement or Rule
144 under the Securities Act, and (ii) the date on which all Registrable
Securities may be resold without restriction or limitation.
1.3. SUPPLEMENTS; AMENDMENTS. Subject to Section 6 hereof, the
Company shall supplement or amend the Registration Statement, (i) as required
by Form S-3, including, without limitation, the instructions applicable to Form
S-3, or by the Securities Act, the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or the rules and regulations promulgated under the
Securities Act or the Exchange Act, respectively, and (ii) to include in the
Registration Statement any additional securities that become Registrable
Securities, if required. The Company shall furnish to the holders of the
Registrable Securities, or their permitted transferees (collectively, the
"Holders"), to which the Registration Statement relates copies of any such
supplement or amendment sufficiently in advance of its use and/or filing with
the Commission to allow the Holders a meaningful opportunity to comment thereon
with respect to the information contained therein regarding the Holders and any
plan for resale of the Registrable Securities. Each Holder as of the date
hereof hereby: (i) acknowledges that it has supplied the information regarding
itself and its plan of resale in the Registration Statement; (ii) waives notice
of the initial filing of the Registration Statement; and (iii) agrees that it
and its successors and assigns will promptly notify the Company of any changes
in such information.
SECTION 2
EXPENSES
The Company shall pay all expenses, fees and costs incurred in
connection with the preparation, filing, distribution and effectiveness of the
Registration Statement and any supplements or amendments thereto, whether or
not the Registration Statement becomes effective, and whether all, none or some
of the Registrable Securities are sold pursuant to the Registration Statement,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company, fees and state
securities, or "blue sky," fees and expenses, fees and expenses of one counsel
for all the Holders, not to exceed $20,000, and the expense of any special
audits incident to or required by, or in connection with the filing and
effectiveness of the Registration Statement. The Holders shall pay all
underwriting fees and discounts, selling commissions, brokerage fees and stock
transfer taxes applicable to the Registrable Securities sold by such Holder.
SECTION 3
REGISTRATION PROCEDURES
3.1. REGISTRATION. The Company will, upon request, advise the
Holders as to the status of the preparation, filing and effectiveness of the
Registration Statement and, at the Company's expense, will do the following:
(a) furnish to each Holder a copy of the Registration
Statement (including all exhibits thereto) and any prospectus forming
a part thereof and any amendments and supplements thereto (including
all documents incorporated or deemed incorporated by reference therein
prior to the effectiveness of the Registration Statement and including
each preliminary prospectus) and any other prospectus filed under Rule
424 under the Securities Act, which documents, other than documents
incorporated or deemed incorporated by reference, will be subject to
the review of the Holders and any underwriter for a period of at least
three (3) business days, and the Company shall not file the
Registration Statement or such prospectus or any amendment or
supplement to the Registration Statement or prospectus if any Holder
shall, within three (3) business days after the receipt thereof, have
given written notice to the Company that such Registration Statement,
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amendment, prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission with respect to
such Holder or its plan of resale;
(b) furnish to each Holder one conformed copy of the
Registration Statement and of each amendment and supplement thereto
(in each case including all exhibits) and such number of copies of the
prospectus forming a part of the Registration Statement (including
each preliminary prospectus) and any other prospectus filed under Rule
424 under the Securities Act, in conformity with the requirements of
the Securities Act, and such other documents, including, without
limitation, documents incorporated or deemed to be incorporated by
reference prior to the effectiveness of such Registration Statement,
as each of the Holders or any such underwriter, from time to time may
reasonably request;
(c) to the extent practicable, following the filing of
any document that is to be incorporated by reference into the
Registration Statement or prospectus forming a part thereof subsequent
to the effectiveness thereof, provide copies of such document to the
Holders, if requested, and make representatives of the Company
available for discussion of such document and other customary due
diligence matters; and provide promptly to the Holders upon request
any document filed by the Company with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act;
(d) make available at reasonable times for inspection by
the Holders, and any attorney, accountant, financial adviser or other
representative (collectively, "Representatives") retained by the
Holders, subject to the recipient's prior agreement to keep such
information confidential and not use or disclose it, all financial and
other records, pertinent corporate documents and properties of the
Company and cause the officers, directors and employees of the Company
to supply all information reasonably requested by the Holders or their
respective Representatives in connection with the preparation, filing
and effectiveness of the Registration Statement;
(e) use its commercially reasonable best efforts (i) to
register or qualify all Registrable Securities covered by the
Registration Statement under state securities, or "blue sky," laws of
such States of the United States of America where an exemption is not
available and that the Holders of Registrable Securities covered by
the Registration Statement shall reasonably request, (ii) to keep such
registration or qualification in effect for so long as the
Registration Statement is required to be effective hereunder, and
(iii) to take any other action which may be reasonably necessary or
advisable to enable the Holders to consummate the disposition of the
securities to be sold by the Holders in such jurisdictions, consistent
with the plan of distribution described in the prospectus included in
the Registration Statement, except that the Company shall not for any
such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction where it is not so qualified
or to execute a general consent to service of process in effecting
such registration, qualification or compliance;
(f) use its commercially reasonable best efforts to
cause all Registrable Securities covered by the Registration Statement
to be registered or qualified with or approved by all other applicable
Governmental Authorities as may be necessary, in the opinion of
counsel to the Company and/or a single counsel to the Holders of
Registrable Securities as a group, to enable the Holders thereof the
consummate the disposition of such Registrable Securities;
(g) subject to Section 6 hereof, promptly notify each
Holder of Registrable Securities covered by the Registration
Statement: (i) upon discovery that, or upon the occurrence of any
event as a result of which, the prospectus forming a part of the
Registration Statement, as then in
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effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of proceedings for that
purpose; (iii) of any request by the Commission, after the
Registration Statement has become effective, for (A) an amendment to
the Registration Statement or any document incorporated or deemed to
be incorporated by reference in the Registration Statement, (B) a
supplement to the prospectus forming a part of the Registration
Statement, (C) additional information, or (D) of the receipt by the
Company of any notification with respect to the suspension of the
registration, qualification or exemption from registration or
qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose. At
the request of any such Holder, the Company shall, if applicable,
promptly prepare and file an amendment to the Registration Statement
or a supplement to the prospectus as the Company may deem necessary so
that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and furnish
to each Holder a reasonable number of copies of such supplement to, or
amendment of, such registration statement and prospectus, and, in the
event of a stop order, use its commercially reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
the Registration Statement, or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction;
(h) if reasonably requested by any Holder or if, in the
opinion of counsel to the Company, required by law or SEC or other
applicable rule or regulation, promptly incorporate in the
Registration Statement such appropriate information as the Holder may
reasonably request to have included therein by filing a Form 8-K, or
filing a supplement to the prospectus, to reflect any change in the
information regarding the Holder, and make all required filings with
the Commission in respect of any offer or sale of Registrable
Securities or any amendment or supplement to the Registration
Statement or related prospectus;
(i) otherwise use its commercially reasonable best
efforts to comply with all applicable rules and regulations, and make
available to its security holders, an earnings statement that
satisfies the provisions of Section 11(a) of the Securities Act and
Rule 158 promulgated thereunder; and
(j) use its commercially reasonable best efforts to
cause all Registrable Securities included in the Registration
Statement to be listed on Nasdaq and each securities exchange on which
securities of the same class are then listed, or, if not then listed
on any securities exchange or Nasdaq, to be eligible for trading in
any over-the-counter market or trading system in which securities of
the same class are then traded.
3.2. UNDERWRITING. If Holders having at least 50% of the
Registrable Securities ("Initiating Holders") intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
the Holders whose shares are to be included in such registration and the
Company shall (together with all other stockholders proposing to distribute
their securities through such underwriting) enter into underwriting and related
agreements in customary form with the representative of the underwriter or
underwriters selected for such underwriting by the Initiating Holders and
reasonably acceptable to the Company. Such underwriting agreement will contain
such representations and
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warranties by the Company and such other terms and provisions as are reasonable
and customary for underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution, the
provision of opinions of counsel and accountants' letters and the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of the Holders. Subject to the foregoing, the Company shall
cooperate fully with the Holders and the underwriters in connection with any
underwritten offering. Notwithstanding any other provision of this Section 3.2,
if the representative of the underwriters advises the Holders in writing that
marketing factors require a limitation on the number of shares to be
underwritten, any securities to be issued by the Company in such distribution
(or contemporaneous distribution other than one covered by Form S-8) shall not
be distributed to the extent reasonably required by such limitation. If, after
the exclusion of such shares, still further reductions are required, the number
of shares included in the underwritten offering by each Holder shall be reduced
on a pro rata basis (based on the number of shares held by such Holder), by
such minimum number of shares as is necessary to comply with such request;
provided, that there shall be no reduction in the number of shares included in
the registration by any Holders until all shares of other stockholders have
been excluded from such underwritten offering. No Registrable Securities or any
other securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such underwritten offering. If any
other stockholder who has requested inclusion in such distribution as provided
above disapproves of the terms of the underwriting, such person may elect to
withdraw therefrom by written notice to the Company, the underwriter and the
Initiating Holders. The securities so withdrawn shall also be withdrawn from
such underwritten offering. If the underwriter has not limited the number of
Registrable Securities or other securities to be underwritten, the Company and
officers and directors of the Company may include its or their securities for
its or their own account in such registration, if the representative of the
underwriters so agrees and if the number of Registrable Securities and other
securities that would otherwise have been included in such registration and
underwriting will not thereby be limited.
SECTION 4
INDEMNIFICATION
4.1. INDEMNIFICATION BY THE COMPANY. The Company will indemnify:
(a) each of the Holders, as applicable,
(b) each of the Holder's officers, directors, members
and partners, and
(c) each individual, partnership, joint stock company,
corporation, trust, unincorporated organization, government agency or
political subdivision (each of the foregoing, a "Person") controlling
each of the Holders within the meaning of Rule 405 under the
Securities Act,
with respect to the Registration Statement (if Registrable Securities held by
such Holder are included in the Registration Statement), against all expenses,
claims, losses, damages and liabilities (or actions, investigations or
proceedings in respect thereof) (collectively, a "Claim") arising out of or
based on any actual or alleged untrue statement of a material fact, or any
omission of a material fact required to be stated therein or necessary in order
to make the statements included therein not misleading, contained in the
Registration Statement, any prospectus or other offering document (including
any related registration statement, notification or the like) incident to the
registration, qualification or compliance, or any
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violation by the Company of the Securities Act or the Exchange Act or any other
laws or any rule or regulation thereunder applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration, qualification or compliance, and will reimburse each of the
Holders, each of its officers, directors, members and partners, and each Person
controlling each of the Holders, for any legal and any other expenses
reasonably incurred in connection with investigating and defending any such
Claim; provided, however, that the Company will not be liable (i) in any such
case to the extent that any such Claim arises out of or is based on any untrue
statement or omission based upon written information furnished to the Company
by the Holders or their Representatives and stated to be specifically for use
in the Registration Statement, prospectus or other offering document or (ii)
for any amounts paid in settlement of any such Claim if such settlement is
effected without the consent of the Company.
4.2. INDEMNIFICATION BY THE HOLDERS. Each of the Holders will, if
Registrable Securities held by it are included in the Registration Statement,
indemnify the Company, each of its directors and officers, and each Person who
"controls" the Company within the meaning of Rule 405 under the Securities Act,
against all Claims arising out of or based on any actual or alleged untrue
statement of a material fact, or any omission or a material fact required to be
stated therein or necessary in order to make the statement included or
incorporated therein not misleading, contained in the Registration Statement,
prospectus, or other offering document made by or on behalf of such Holder, and
will reimburse the Company, its directors, officers, partners, members or
control Persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such Claim, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in the Registration
Statement, prospectus, offering memorandum or other document in conformity with
written information furnished to the Company by or on behalf of such Holder and
stated to be specifically for use therein; provided, however, that the
obligations of each of the Holders hereunder shall be limited to an amount
equal to the net proceeds received by such Holder from the sale of the
Registrable Securities pursuant to the Registration Statement.
4.3. PROCEDURES. Each party entitled to indemnification under this
Agreement (each, an "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any Claim as to which indemnity
may be sought and shall permit the Indemnifying Party to assume the defense of
any such Claim; provided that counsel for the Indemnifying Party, who shall
conduct the defense of such Claim, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld), and the Indemnified Party
may participate in such defense at its own expense (unless the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in such action, in
which case the reasonable fees and expenses of one such counsel for all
Indemnified Parties as a group shall be at the expense of the Indemnifying
Party), and provided further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement unless the Indemnifying Party is materially
prejudiced thereby. No Indemnifying Party, in the investigation or defense of
any such Claim shall, except with the consent of each Indemnified Party (which
consent shall not be unreasonably withheld or delayed), consent to entry of any
judgment or enter into any settlement or compromise which does not include an
unconditional release of the Indemnified Party from all liability in respect to
such Claim. Each Indemnified Party shall furnish such information regarding
itself or the Claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with the
investigation and defense of such Claim.
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4.4. CONTRIBUTION. If the indemnification provided for in this
Agreement is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any Claim, then the Indemnifying Party, in
lieu of indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
liability, claim, damage or expense in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and of the
Indemnified Party on the other in connection with the statements or omissions
which resulted in such Claim, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue (or alleged untrue) statement of a material fact or the
omission (or alleged omission) to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and provided that each Holder shall not be
required to contribute, in the aggregate, more than the net proceeds received
by the Holders from the sale of the Registrable Securities pursuant to the
Registration Statement.
Notwithstanding the foregoing, no party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any party who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph, each Person, if any, who
controls a Holder within the meaning of Rule 405 under the Securities Act and
directors, officers, members and partners of such Holder shall have the same
rights to contribution as such Holder, and each director of the Company, each
officer of the Company who signed the registration statement and each Person,
if any, who controls the Company within the meaning of Rule 405 under the
Securities Act shall have the same rights to contribution as the Company.
SECTION 5
PROVISION OF INFORMATION BY THE HOLDERS
Each of the Holders whose Registrable Securities are included in the
Registration Statement shall furnish to the Company such information regarding
such Holder as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement and shall promptly notify the Company
if such information becomes incorrect or misleading, or requires amendment or
updating. Each of the Holders agrees that the plan of distribution included in
any prospectus relating to the Registrable Securities shall be as set forth on
Schedule 3 hereto and that such Holder will not resell any Registrable
Securities pursuant to the Registration Statement in any manner other than as
provided therein or herein. The other information regarding the Holders
required for the initial filing of the Registration Statement has been provided
by each Holder to the Company by completing the questionnaire in the form
attached as Schedule 2. Each Holder represents, warrants and covenants to the
Company that the information in Schedule 1 and on the completed questionnaire
in the form attached as Schedule 2 is accurate and complete in all respects.
The Purchaser will confirm promptly the sale of any Shares pursuant to Rule 144
or the Registration Statement by delivery to the Company of a signed copy of
Schedule 4.
SECTION 6
HOLDBACK; POSTPONEMENT
Notwithstanding the other provisions of this Agreement, if (a) there
is material non-public information regarding the Company which the Company's
Board of Directors reasonably and in good
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faith determines not to be in the Company's best interest to disclose publicly
and which the Company is not otherwise required to disclose publicly, or (b)
there is a extraordinary business opportunity (including, but not limited to,
the acquisition or disposition of assets (other than in the ordinary course of
business) or any financing, merger, consolidation, tender offer or other
similar extraordinary transaction not in the ordinary course of business)
available to the Company which the Company's Board of Directors reasonably and
in good faith determines not to be in the Company's best interest to disclose
publicly, then the Company may postpone or suspend filing or effectiveness of a
registration statement for a period not to exceed 45 days, provided that the
Company may not postpone or suspend filing or effectiveness of a registration
statement for more than 90 days in the aggregate during any 365-day period and
there shall be an aggregate of not more than two (2) suspensions during any
365-day period; provided, however that no postponement or suspension shall be
permitted for consecutive 45 day periods arising out of the same set of facts,
circumstances or transactions.
SECTION 7
RULE 144 REPORTING, ETC.
7.1. SEC REPORTING COMPLIANCE. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration, through the second anniversary of this Agreement, the Company
will:
(a) make and keep "current public information" regarding
the Company available, as defined in Rule 144(c) under the Securities
Act;
(b) use its commercially reasonable best efforts to file
with the Commission in a timely manner all SEC Reports and other
filings and documents required of the Company under the Securities Act
and the Exchange Act and otherwise; and
(c) so long as a Holder owns any Registrable Securities,
furnish the Holders upon request a written statement by the Company as
to its compliance with the reporting requirements under the Securities
Act and the Exchange Act, including compliance with Rule 144(c), a
copy of the most recent annual or quarterly report of the Company, and
such other reports and documents of the Company and other information
in the possession of, or obtainable without undue effort or expense
by, the Company as a Holder may reasonably request in availing itself
of any rule or regulation of the Commission allowing a Holder to sell
any such securities without registration.
SECTION 8
MISCELLANEOUS
8.1. ASSIGNMENT. The registration rights set forth herein may be
assigned, in whole or in part, to any transferee of Registrable Securities
permitted in accordance with the Stock Purchase Agreement, which transferee,
upon registration on the Company's or its transfer agent's books and records as
a holder of record of Registrable Securities, shall be considered thereafter to
be a Holder (provided that any transferee who is not an affiliate of a
Purchaser shall be a Holder only with respect to such Registrable Securities so
acquired and any stock of the Company issued as a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
Registrable Securities) and shall be bound by all obligations and limitations
of this Agreement and the Stock Purchase Agreement.
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8.2. SECTION HEADINGS. The titles and headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not
be deemed to constitute a part thereof.
8.3. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina, without
regard to the principles of conflicts of laws.
8.4. NOTICES.
(a) All communications under this Agreement shall be in
writing and shall be delivered by facsimile, by hand, by reliable
overnight delivery service such as UPS or FedEx or by registered or
certified mail, postage prepaid:
(i) if to the Company, to 000 Xxxxxxxxx Xxxxx
Xxxxx, Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000, (000) 000-0000,
Attention: Chief Financial Officer, or at such other address
as it may have furnished in writing to the Purchasers;
(ii) if to the Purchasers, at the addresses
listed on Schedule 1 hereto, or at such other addresses as
may have been furnished the Company in writing.
(b) Any notice so addressed shall be deemed to be given
(i) if delivered by hand, on the date of such delivery, (ii) if sent
by reliable overnight delivery service such as UPS or FedEx, on the
first business day following the date of delivery to such service for
overnight delivery, (iii) if delivered by facsimile, on the date of
such facsimile with confirmed receipt, or (iv) if mailed by registered
or certified mail, on the third business day after the date of such
mailing.
8.5. SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties. No other person is intended to or
shall have any rights or remedies hereunder, whether as a third part
beneficiary or otherwise.
8.6. COUNTERPARTS. This Agreement may be executed in two or more
identical counterparts, each of which shall be deemed an original and all of
which shall be one and the same agreement. Any signature that is delivered by
facsimile signature page shall be valid and binding, with the same force and
effect as if an original, manually signed counterpart.
8.7. SEVERABILITY. In the event that any provision contained
herein is unenforceable, the remaining provisions shall continue in full force
and effect.
8.8. DELAYS OR OMISSIONS. It is agreed that no delay or omission
to exercise any right, power or remedy accruing to the Holders, upon any breach
or default of the Company under this Agreement, shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any provision
hereof, or of any similar breach or default thereafter occurring; nor shall any
wavier of any single breach or default be deemed a waiver of any other breach
or default theretofore or thereafter occurring. It is further agreed that any
waiver, permit, consent or approval of any kind or character by a Holder of any
breach or default under this Agreement, or any waiver by a Holder of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in the writing, and that
all remedies, either under this Agreement, or by law or otherwise afforded to a
Holder, shall be cumulative and not alternative.
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8.9. ATTORNEY'S FEES. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
8.10. ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with
the other Operative Documents, constitute the entire understanding and
agreement of the parties with respect to the subject matter hereof and
supersede all prior understandings, written or otherwise, among such parties.
This Agreement may be amended only in a writing signed by the Company and the
Holders of a majority of the then outstanding Registrable Securities.
IN WITNESS WHEREOF, the undersigned, thereunto duly authorized, have
executed this Agreement as of the date first set forth above.
BLUE RHINO CORPORATION
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: President and CEO
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PURCHASERS:
LAGUNITAS PARTNERS, LP
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
------------------------------------
Title: GMCM Manager
------------------------------------
General Partner
------------------------------------
XXXXXX FAMILY FOUNDATION
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
------------------------------------
Title: Secretary
------------------------------------
XXXXXXXX COLLEGE
By: /s/ Xxx X. Xxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxx
------------------------------------
Title: GMCM Managing Member,
------------------------------------
Attorney-in-Fact
------------------------------------
XXXXXX & XXXXXXX INTERNATIONAL
By: /s/ Xxx X. Xxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxx
------------------------------------
Title: GMCM Managing Member,
------------------------------------
Attorney-in-Fact
------------------------------------
/s/ Xxx X. Xxxxxx
-----------------------------------------------
Xxx X. Xxxxxx
-----------------------------------------------
-10-
/s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxx
-----------------------------------------------
XXX X. XXXXXX TTEE FBO XXXXXXX X. XXXXXX
By: /s/ Xxx X. Xxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxx
------------------------------------
Title: Trustee
------------------------------------
XXX X. XXXXXX TTEE FBO XXXXXXXX X. XXXXXX
By: /s/ Xxx X. Xxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxx
------------------------------------
Title: Trustee
------------------------------------
/s/ X. Xxxxxxxxx McBaine
-----------------------------------------------
X. Xxxxxxxxx XxXxxxx
-----------------------------------------------
ZURICH INSTITUTIONAL BENCHMARK MASTER FUND, LTD.
By: /s/ Xxx X. Xxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxx
------------------------------------
Title: GMCM Managing Member,
------------------------------------
Attorney-in-Fact
------------------------------------
COLONIAL FUND, LLC
By: /s/ Xxxx X. Xxxxx
-------------------------------------------
Name: Xxxx X. Xxxxx
------------------------------------
Title: President
------------------------------------
GULFSTREAM PARTNERS, L.P.
By: /s/ Xxxxx X. XxxXxxxxx
-------------------------------------------
Name: Xxxxx X. XxxXxxxxx
------------------------------------
Title: Managing General Partner
------------------------------------
-11-
HERMES PARTNERS, L.P.
By: /s/ Xxxx Xxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxx
------------------------------------
Title: President of Hermes Advisors
------------------------------------
ULTRA HERMES FUND, LTD.
By: /s/ Xxxx Xxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxx
------------------------------------
Title: President of Hermes Advisors
------------------------------------
XXXXXX FUND, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------------
Title: Managing Member of the General
------------------------------------
Partner
------------------------------------
XXXXXX FUND II, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------------
Title: Managing Member of the General
------------------------------------
Partner
------------------------------------
XXXXXX FUND OFFSHORE, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------------
Title: Managing Member of the Investment
------------------------------------
Manager
------------------------------------
XXXXXX PARTNERS, L.P.
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
------------------------------------
Title: General Partner
------------------------------------
-00-
XXXXXX-XXXXXXX X.X.
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
------------------------------------
Title: General Partner
------------------------------------
XXXXXX-GEPT, L.P.
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
------------------------------------
Title: General Partner
------------------------------------
COLUMBUS CAPITAL PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------------
Title: Managing Member of
------------------------------------
Columbus Capital Management, LLC
------------------------------------
General Partner
------------------------------------
COLUMBUS CAPITAL OFFSHORE FUND, LTD.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------------
Title: Managing Member of
------------------------------------
Columbus Capital Management, LLC
------------------------------------
Investment Manager
------------------------------------
-13-
Registration Rights Agreement
SCHEDULE 1
SCHEDULE OF PURCHASERS
Name and Address No. of Shares
-14-
Registration Rights Agreement
SCHEDULE 2
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement,
please provide us with the following information:
1. Pursuant to the "Selling Stockholder" section of the
Registration Statement, please state your or your organization's name and
address exactly as it should appear in the Registration Statement:
-------------------------------------------------------------------------------
2. Please provide the number of shares of Common Stock of the
Company that you or your organization will beneficially own (as determined in
accordance with Rule 13d-3 under the Exchange Act) immediately after Closing,
including those Shares purchased by you or your organization pursuant to the
Stock Purchase Agreement and those shares purchased by you or your organization
through other transactions. Explain the nature of beneficial ownership of any
shares that are not held of record by you. Disclose the details of any rights
to acquire shares.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
3. Have you or your organization had any position, office or
other relationship within the past three years with the Company or its
affiliates other than as disclosed in the Prospectus included in the
Registration Statement?
[ ] Yes [ ] No
If yes, please indicate the nature of any such relationships below:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
4. Are you, or is your organization, a broker-dealer or an
affiliate of a broker-dealer within the meaning of Rule 405 under the
Securities Act.
[ ] Yes [ ] No
-15-
Registration Rights Agreement
If yes, please identify the broker-dealer below and state the nature
of the relationship:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
5. Identify the natural person or persons who have voting and/or
investment control over the securities that you or your organization are
offering for resale in the Registration Statement.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
* Please note that it is your obligation to advise the Company promptly
if any of the foregoing information changes during the period of effectiveness
of the Registration Statement (except due to sales of the Shares pursuant
thereto).
-16-
Registration Rights Agreement
The undersigned, thereunto duly authorized on behalf of the Purchaser, confirms
the accuracy and completeness of the foregoing and agrees that sales shall be
made only in the manner indicated under the "Plan of Distribution" in the
Prospectus.
-----------------------------------
Name of Purchaser
By:
--------------------------------
Name:
Title:
-17-
Registration Rights Agreement
Registration Rights Agreement
SCHEDULE 3
PLAN OF DISTRIBUTION
The selling stockholders may sell the shares on any stock exchange,
market, or trading facility on which the shares are traded, in private
transactions, or otherwise, at market prices prevailing at the time of sale, at
prices related to the prevailing market prices, or at negotiated prices. In
addition, the selling stockholders may sell some or all of their shares
through:
- a block trade in which a broker-dealer may resell a portion
of the block, as principal, in order to facilitate the
transaction;
- purchases by a broker-dealer, as principal, and resale by the
broker-dealer for its account;
- ordinary brokerage transactions and transactions in which a
broker solicits purchasers;
- an underwritten public offering;
- any other method permitted pursuant to applicable law; or
- a combination of any such methods of sale.
When selling the shares, the selling stockholders may enter into
hedging transactions. For example, the selling stockholders may:
- enter into transactions involving short sales of the shares
by broker-dealers;
- sell shares short themselves and redeliver such shares to
close out their short positions;
- enter into option or other types of transactions that require
the selling stockholder to deliver shares to a broker-dealer,
who will then resell or transfer the shares under this
prospectus; or
- loan or pledge the shares to a broker-dealer, who may sell
the loaned shares or, in the event of default, sell the
pledged shares.
The selling stockholders may negotiate and pay broker-dealers
commissions, discounts or concessions for their services. Broker-dealers
engaged by the selling stockholders may allow other broker-dealers to
participate in resales. However, the selling stockholders and any
broker-dealers involved in the sale or resale of the shares may qualify as
"underwriters" within the meaning of Section 2(a)(11) of the Securities Act. In
addition, the broker-dealers' commissions, discounts or concession may qualify
as underwriters' compensation under the Securities Act. The Company has agreed
to indemnify each selling stockholder against certain liabilities, including
liabilities arising under the Securities Act. If the selling stockholders
qualify as "underwriters" they will be subject to the prospectus delivery
requirements of Section 5(b)(2) of the Securities Act. Each broker-dealer
engaged by a selling stockholder (or by a broker-dealer engaged by a selling
stockholder) must be registered or licensed in each state in which such
broker-dealer conducts offers and sales of shares of the selling stockholders.
In addition to selling their shares under this prospectus, the selling
stockholders may:
-18-
Registration Rights Agreement
- agree to indemnify any broker-dealer or agent against certain
liabilities related to the selling of the shares, including
liabilities arising under the Securities Act;
- transfer their shares in other ways not involving market
makers or established trading markets, including directly by
gift, distribution, or other transfer; or
- sell their shares under Rule 144 of the Securities Act rather
than under this prospectus, if the transaction meets the
requirements of Rule 144.
As used herein, the term "selling stockholder" includes donees,
pledgees, transferees or other successors-in-interest selling shares received
after the date of this prospectus from a named selling stockholder as a gift,
pledge, partnership distribution or other non-sale related transfer.
Upon the Company being notified by a selling stockholder that any
material arrangement has been entered into with a broker-dealer or underwriter
for the sale of shares through a block trade, special offering, exchange
distribution or secondary distribution or a purchase by a broker or dealer, a
prospectus supplement will be filed, if required, pursuant to Rule 434(b) under
the Securities Act, disclosing: (1) the name of each such selling stockholder
and of the participating broker-dealer(s) or underwriter(s); (2) the number of
shares involved, (3) the price at which such shares were or will be sold, (4)
the commissions paid or to be paid or discounts or concessions allowed to such
broker-dealer(s) or underwriter(s), where applicable, (5) that, as applicable,
such broker-dealer(s) did not conduct any investigation to verify the
information set out or incorporated by reference in this prospectus and (6)
other facts material to the transaction. In addition, upon the Company being
notified by a selling stockholder that a donee, pledgee, transferee, or other
successor-in-interest intends to sell more than 500 shares, a prospectus
supplement will be filed, if required.
-19-
Registration Rights Agreement
SCHEDULE 4
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE(1)
The undersigned, an officer of, or other person duly authorized
by____________________________________________________ hereby certifies to the
[fill in official name of individual or institution]
Company, as defined in the Registration Right Agreement dated as of _______
(the "Agreement") that he/she (said institution) is the Purchaser of the shares
evidenced by the attached certificate, and as such, sold such shares on
___________________ in accordance with
[date]
(i) Registration Statement number
_____________________________________________,
[fill in the number of or otherwise identify]
in the manner indicated under "Plan of Distribution" in the
current prospectus and has delivered a current prospectus, or
(ii) pursuant to the applicable requirements of Rule 144 of the
Securities Act of 1933, as amended, in which case, a copy of
Form 144 as filed with the Securities and Exchange
Commission, together with the representation letter of the
undersigned and the broker's representation letter are
enclosed.
Print or Type:
Name of Purchaser
(Individual or Institution):
-------------------------------
Name of Individual Representing
Purchaser (if an Institution):
-----------------------------
Title:
-----------------------
Confirmed by the undersigned thereunto duly authorized:
----------------------------------------------------------
Purchaser
By:
-------------------------------------------------------
Name:
Title:
---------
(1) All capitalized terms used but not defined herein shall have the
meanings provided in the Agreement.
-20-
