EXHIBIT 10.8
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON EXEMPTIONS FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN COMPLIANCE WITH ALL APPLICABLE STATE SECURITIES OR BLUE
SKY LAWS. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES.
BLUE RHINO CORPORATION
ADDITIONAL INVESTMENT RIGHT
Additional Investment Right No. [ ] Dated: December 20, 2002
Blue Rhino Corporation, a Delaware corporation (the "COMPANY"), hereby
certifies that, for value received, [Name of Holder] or its registered assigns
(the "HOLDER"), is entitled to purchase from the Company up to a total of [ ]
shares of common stock, $0.001 par value per share (the "COMMON STOCK"), of the
Company (each such share, an "ADDITIONAL INVESTMENT RIGHT SHARE" and all such
shares, the "ADDITIONAL INVESTMENT RIGHT SHARES") at an exercise price equal to
$[ ] per share (as adjusted from time to time as provided in Section 9, the
"EXERCISE PRICE"), at any time and from time to time from and after the earlier
of (i) 90 days after the Closing Date, and (ii) the Effective Date (such earlier
date, the "TRIGGER DATE"), and through and including the 90th Trading Day
following the Effective Date (the "EXPIRATION DATE"), subject to the following
terms and conditions. This Additional Investment Right (this "ADDITIONAL
INVESTMENT RIGHT") is one of a series of similar additional investment rights
issued pursuant to that certain Securities Purchase Agreement, dated as of the
date hereof, by and among the Company and the Purchasers identified therein (the
"PURCHASE AGREEMENT"). All such additional investment rights are referred to
herein, collectively, as the "ADDITIONAL INVESTMENT RIGHTS."
1. Definitions. In addition to the terms defined elsewhere in this
Additional Investment Right, capitalized terms that are not otherwise defined
herein have the meanings given to such terms in the Purchase Agreement.
2. Registration of Additional Investment Right. The Company shall
register this Additional Investment Right, upon records to be maintained by the
Company for that purpose (the "ADDITIONAL INVESTMENT RIGHT REGISTER"), in the
name of the Holder (which shall include
the initial Holder or, as the case may be, any registered assignee to which this
Additional Investment Right is permissibly assigned hereunder from time to
time). The Company may deem and treat the registered Holder as the absolute
owner of this Additional Investment Right for the purpose of any exercise
hereof, any distribution in respect hereof and for all other purposes.
3. Registration of Transfers. The Company shall register the assignment
and transfer of any portion of this Additional Investment Right in the
Additional Investment Right Register, only upon (i) surrender of this Additional
Investment Right, with the Form of Assignment attached hereto duly completed and
signed, and (ii) if the registration statement is not effective, (x) if the
assignment or transfer is not to an Affiliate of such Holder, delivery of an
opinion of counsel reasonably satisfactory to the Company, to the effect that
the transfer of such portion of this Additional Investment Right may be made
pursuant to an available exemption from the registration requirements of the
Securities Act and all applicable state securities or blue sky laws and (y) if
the assignment or transfer is to an Affiliate of such Holder, delivery by the
transferee of a written statement to the Company certifying that the transferee
is an Affiliate of the Holder and an "accredited investor" as defined in Rule
501(a) under the Securities Act and making the representations and
certifications as set forth in Sections 3.2(b), (c) and (d) of the Purchase
Agreement, in each case, to the Company at its address specified in the Purchase
Agreement. Upon any such registration, a new additional investment right to
purchase Common Stock, in substantially the form of this Additional Investment
Right (any such new additional investment right, a "NEW ADDITIONAL INVESTMENT
RIGHT"), evidencing the portion of this Additional Investment Right so
transferred shall be issued to the transferee and a New Additional Investment
Right evidencing the remaining portion of this Additional Investment Right not
so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Additional Investment Right by the transferee shall be
deemed the acceptance by such transferee of all of the rights and obligations in
respect of the New Additional Investment Right that the Holder has in respect of
this Additional Investment Right.
4. Exercise and Duration of Additional Investment Right.
(a) This Additional Investment Right shall be exercisable by the
registered Holder at any time and from time to time on or after the Trigger Date
and through and including the Expiration Date. At 6:30 P.M., New York City time
on the Expiration Date, the portion of this Additional Investment Right not
exercised prior thereto shall be and become void and of no value and this
Additional Investment Right shall be terminated and no longer outstanding.
(b) The Holder may exercise this Additional Investment Right by
delivering to the Company (i) an exercise notice, in the form attached hereto
(the "EXERCISE NOTICE"), completed and duly signed, and (ii) payment of the
Exercise Price for the number of Additional Investment Right Shares as to which
this Additional Investment Right is being exercised, and the date such items are
delivered to the Company (as determined in accordance with the notice provisions
hereof) is an "EXERCISE DATE." The delivery by (or on behalf of) the Holder of
the Exercise Notice and the applicable Exercise Price as provided above shall
constitute the Holder's certification to the Company that its representations
contained in Section 3.2(b), (c) and (d) of the Purchase Agreement are true and
correct as of the Exercise Date as if remade in their entirety
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(or, in the case of any assignee Holder that is not a party to the Purchase
Agreement, such assignee Holder's certification to the Company that such
representations are true and correct as to such assignee Holder as of the
Exercise Date). The Holder shall not be required to deliver the original
Additional Investment Right in order to effect an exercise hereunder. Execution
and delivery of the Exercise Notice shall have the same effect as cancellation
of the original Additional Investment Right and issuance of a New Additional
Investment Right evidencing the right to purchase the remaining number of
Additional Investment Right Shares.
5. Delivery of Additional Investment Right Shares.
(a) Upon exercise of this Additional Investment Right, the Company
shall promptly (but in no event later than three Trading Days after the Exercise
Date) issue or cause to be issued and cause to be delivered to or upon the
written order of the Holder and in such name or names as the Holder may
designate (provided that, if the Registration Statement is not effective and the
Holder directs the Company to deliver a certificate for the Additional
Investment Right Shares in a name other than that of the Holder or an Affiliate
of the Holder, it shall deliver to the Company on the Exercise Date an opinion
of counsel reasonably satisfactory to the Company to the effect that the
issuance of such Additional Investment Right Shares in such other name may be
made pursuant to an available exemption from the registration requirements of
the Securities Act and all applicable state securities or blue sky laws or, if
the transferee is an Affiliate of the Holder, the statement set forth in Section
3(ii)(y) in lieu of such opinion), a certificate for the Additional Investment
Right Shares issuable upon such exercise, free of restrictive legends unless a
registration statement covering the resale of the Additional Investment Right
Shares and naming the Holder as a selling stockholder thereunder is not then
effective and the Additional Investment Right Shares are not freely transferable
without volume restrictions pursuant to Rule 144 under the Securities Act. The
Holder, or any Person so designated by the Holder to receive Additional
Investment Right Shares, shall be deemed to have become holder of record of such
Additional Investment Right Shares as of the Exercise Date. The Company shall,
upon the written request of the Holder, use its best efforts to deliver
Additional Investment Right Shares hereunder electronically through the
Depository Trust Corporation or another established clearing corporation
performing similar functions.
(b) This Additional Investment Right is exercisable either in its
entirety or, from time to time, for a portion of the number of Additional
Investment Right Shares. Upon surrender of this Additional Investment Warrant
following one or more partial exercises, the Company shall issue or cause to be
issued, at its expense, a New Additional Investment Warrant evidencing the right
to purchase the remaining number of Additional Investment Warrant Shares, if
requested in writing by the Holder.
(c) The provisions of this Section 5(c) are expressly subject to the
last sentence of Section 5(a). In addition to any other rights available to a
Holder, if the Company fails to deliver to the Holder a certificate representing
Additional Investment Right Shares on the date on which delivery of such
certificate is required by this Additional Investment Right, such Holder may
notify the Company via facsimile, mail or any other written means of its failure
to deliver the certificate (a "DELIVERY FAILURE NOTICE"). If the Company fails
to deliver to the Holder a certificate representing Additional Investment Right
Shares by the third Trading Day
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after delivery of the Delivery Failure Notice by the Holder and if, after such
third Trading Day after the delivery of the Delivery Failure Notice the Holder
purchases (in an open market transaction or otherwise) shares of Common Stock to
deliver in satisfaction of a sale by the Holder of the Additional Investment
Right Shares that the Holder anticipated receiving from the Company (a
"BUY-IN"), then the Company shall, within three Trading Days after the Holder's
request and in the Holder's discretion, either (i) pay cash to the Holder in an
amount equal to the Holder's total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased (the "BUY-IN
PRICE"), at which point the Company's obligation to deliver such certificate
(and to issue such Additional Investment Right Shares) shall terminate, or (ii)
promptly honor its obligation to deliver to the Holder a certificate or
certificates representing such Additional Investment Right Shares and pay cash
to the Holder in an amount equal to the excess (if any) of the Buy-In Price over
the product of (A) such number of Additional Investment Right Shares, times (B)
the Closing Price on the third Trading Day after the Exercise Date.
(d) The Company's obligations to issue and deliver Additional
Investment Right Shares in accordance with the terms hereof are absolute and
unconditional, irrespective of any action or inaction by the Holder to enforce
the same, the recovery of any judgment against any Person or any action to
enforce the same, or any setoff, counterclaim, recoupment, limitation or
termination, or any breach or alleged breach by the Holder or any other Person
of any obligation to the Company or any violation or alleged violation of law by
the Holder or any other Person. Nothing herein shall limit the Holder's right to
pursue any other remedies available to it hereunder, at law or in equity,
including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company's failure to timely deliver
certificates representing Additional Investment Right Shares upon exercise of
the Additional Investment Right as required pursuant to the terms hereof.
6. Charges, Taxes and Expenses. Issuance and delivery of certificates
for shares of Common Stock upon exercise of this Additional Investment Right
shall be made without charge to the Holder for any issue or transfer tax,
withholding tax, transfer agent fee or other incidental tax or expense in
respect of the issuance of such certificates, all of which taxes and expenses
shall be paid by the Company; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the registration of any certificates for Additional Investment Right Shares
or Additional Investment Rights in a name other than that of the Holder. The
Holder shall be responsible for all other tax liability that may arise as a
result of holding or transferring this Additional Investment Right or receiving
Additional Investment Right Shares upon exercise hereof.
7. Replacement of Additional Investment Right. If this Additional
Investment Right is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon
cancellation hereof, or in lieu of and substitution for this Additional
Investment Right, a New Additional Investment Right, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction and, if requested, customary and reasonable indemnity. If the Holder
seeks a New Additional Investment Right under such circumstances, it shall also
comply with such other reasonable
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regulations and procedures and pay such other reasonable third party costs as
the Company may prescribe.
8. Reservation of Additional Investment Right Shares. The Company
covenants that it will at all times reserve and keep available out of its
authorized but unissued and otherwise unreserved Common Stock, solely for the
purpose of enabling it to issue Additional Investment Right Shares upon exercise
of this Additional Investment Right as herein provided, the number of Additional
Investment Right Shares which are then issuable and deliverable upon the
exercise in full of this Additional Investment Right, free from preemptive
rights or any other contingent purchase rights of persons other than the Holder
(taking into account the adjustments and restrictions of Section 9). The Company
covenants that all Additional Investment Right Shares so issuable and
deliverable shall, upon issuance and the payment of the applicable Exercise
Price in accordance with the terms hereof, be duly and validly authorized and
issued, fully paid and nonassessable. Each of the Company and the Holder will
take all such action as may be necessary to assure that such shares of Common
Stock may be issued as provided herein without violation of any applicable law
or regulation or of any requirements of any securities exchange or automated
quotation system upon which the Common Stock may be listed.
9. Certain Adjustments. The Exercise Price and number of Additional
Investment Right Shares issuable upon exercise of this Additional Investment
Right are subject to adjustment from time to time as set forth in this Section
9.
(a) Stock Dividends and Splits. If the Company, at any time while this
Additional Investment Right is outstanding, (i) pays a stock dividend on its
Common Stock or otherwise makes a distribution on any class of capital stock
that is payable in shares of Common Stock, (ii) subdivides outstanding shares of
Common Stock into a larger number of shares, or (iii) combines outstanding
shares of Common Stock into a smaller number of shares, then in each such case
the Exercise Price shall be multiplied by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding immediately before
such event and of which the denominator shall be the number of shares of Common
Stock outstanding immediately after such event. Any adjustment made pursuant to
clause (i) of this paragraph shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or
distribution, and any adjustment pursuant to clauses (ii) or (iii) of this
paragraph shall become effective immediately after the effective date of such
subdivision or combination.
(b) Pro Rata Distributions. If the Company, at any time while this
Additional Investment Right is outstanding, distributes to holders of Common
Stock (i) evidences of its indebtedness, (ii) any security (other than a
distribution of Common Stock covered by the preceding paragraph), (iii) rights
or warrants to subscribe for or purchase any security, or (iv) any other asset
(in each case, "DISTRIBUTED PROPERTY"), then, upon any exercise of the
Additional Investment Right that occurs after the record date fixed for
determination of stockholders entitled to receive such distribution, the Holder
shall be entitled to receive, in addition to the Additional Investment Right
Shares otherwise issuable upon such exercise (if applicable), the Distributed
Property distributed in respect of one share of Common Stock to holders of
Common Stock as of such record date times the number of Additional Investment
Right Shares for which the Holder exercises this Additional Investment Right
(appropriately
5
adjusted for any stock splits, combination or similar event between such record
date and such exercise).
(c) Fundamental Transactions. If, at any time while this Additional
Investment Right is outstanding, (i) the Company effects any merger or
consolidation of the Company with or into another Person, (ii) the Company
effects any sale of all or substantially all of its assets in one or a series of
related transactions, (iii) any tender offer or exchange offer (whether by the
Company or another Person) is completed pursuant to which holders of Common
Stock are permitted to tender or exchange their shares for other securities,
cash or property, or (iv) the Company effects any reclassification of the Common
Stock or any compulsory share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities, cash or property
(other than as a result of a subdivision or combination of shares of Common
Stock covered by Section 9(a) above) (in any such case, a "FUNDAMENTAL
TRANSACTION"), then the Holder shall have the right thereafter to receive, upon
exercise of this Additional Investment Right, the same amount and kind of
securities, cash or property as it would have been entitled to receive upon the
occurrence of such Fundamental Transaction if it had been, immediately prior to
such Fundamental Transaction, the holder of the number of Additional Investment
Right Shares then issuable upon exercise in full of this Additional Investment
Right (the "ALTERNATE CONSIDERATION"). The aggregate Exercise Price for this
Additional Investment Right will not be affected by any such Fundamental
Transaction, but the Company shall apportion such aggregate Exercise Price among
the Alternate Consideration in a reasonable manner reflecting the relative value
of any different components of the Alternate Consideration. If holders of Common
Stock are given any choice as to the securities, cash or property to be received
in a Fundamental Transaction, then the Holder shall be given the same choice as
to the Alternate Consideration it receives upon any exercise of this Additional
Investment Right following such Fundamental Transaction. At the Holder's
request, any successor to the Company or surviving entity in such Fundamental
Transaction shall issue to the Holder a New Additional Investment Right
consistent with the foregoing provisions and evidencing the Holder's right to
purchase the Alternate Consideration for the aggregate Exercise Price upon
exercise thereof. The terms of any agreement pursuant to which a Fundamental
Transaction is effected shall include terms requiring any such successor or
surviving entity to comply with the provisions of this paragraph (c) and that
the Additional Investment Right (or any such replacement security) will be
similarly adjusted upon any subsequent transaction analogous to a Fundamental
Transaction. If any Fundamental Transaction constitutes or results in a Change
of Control, then at the request of the Holder delivered before the 90th day
after such Fundamental Transaction (or, if earlier, before the Expiration Date),
the Company (or any such successor or surviving entity) will purchase the
Additional Investment Warrant from the Holder for a purchase price, payable in
cash within five Trading Days after such request (or, if later, on the effective
date of the Fundamental Transaction), equal to the Black Scholes value of the
remaining unexercised portion of this Additional Investment Warrant on the date
of such request.
(d) Number of Additional Investment Right Shares. Simultaneously with
any adjustment to the Exercise Price pursuant to paragraph (a) of this Section,
the number of Additional Investment Right Shares that may be purchased upon
exercise of this Additional Investment Right shall be increased or decreased
proportionately, so that after such adjustment
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the aggregate Exercise Price payable hereunder for the increased or decreased
number of Additional Investment Right Shares shall be the same as the aggregate
Exercise Price in effect immediately prior to such adjustment.
(e) Calculations. All calculations under this Section 9 shall be made
to the nearest cent or the nearest share, as applicable. The number of shares of
Common Stock outstanding at any given time shall not include shares owned or
held by or for the account of the Company; provided that such shares, upon
disposition to a third party, shall then be considered outstanding.
(f) Notice of Adjustments. Upon the occurrence of each adjustment
pursuant to this Section 9, the Company at its expense will, at the written
request of the Holder, promptly compute such adjustment in accordance with the
terms of this Additional Investment Right and prepare a certificate setting
forth such adjustment, including a statement of the adjusted Exercise Price and
adjusted number or type of Additional Investment Right Shares or other
securities issuable upon exercise of this Additional Investment Right (as
applicable), describing the transactions giving rise to such adjustments and
showing in reasonable detail the facts upon which such adjustment is based, and
deliver a copy of each such certificate to the Holder and to the Company's
Transfer Agent.
(g) Notice of Corporate Events. If, while this Additional Investment
Right is outstanding, the Company (i) declares a dividend or any other
distribution of cash, securities or other property in respect of its Common
Stock, including, without limitation, any granting of rights or warrants to
subscribe for or purchase any capital stock of the Company or any Subsidiary pro
rata to the holders of Common Stock, (ii) authorizes or approves, enters into
any agreement contemplating or solicits stockholder approval for any Fundamental
Transaction or (iii) authorizes the voluntary dissolution, liquidation or
winding up of the affairs of the Company, then the Company shall deliver to the
Holder a notice describing the material terms and conditions of such
transaction, at least 10 Trading Days prior to the applicable record or
effective date on which a Person would need to hold Common Stock in order to
participate in or vote with respect to such transaction; provided, however, that
the failure to deliver such notice or any defect therein shall not affect the
validity of the corporate action required to be described in such notice.
10. Payment of Exercise Price. The Holder shall pay the Exercise Price
in immediately available funds.
11. Limitation on Exercise. Notwithstanding anything to the contrary
contained herein, the number of shares of Common Stock that may be acquired by
the Holder upon any exercise of this Additional Investment Right (or otherwise
in respect hereof) shall be limited to the extent necessary to ensure that,
following such exercise (or other issuance), the total number of shares of
Common Stock then beneficially owned by such Holder and its Affiliates and any
other Persons whose beneficial ownership of Common Stock would be aggregated
with the Holder's for purposes of Section 13(d) of the Exchange Act, does not
exceed 4.999% (the "MAXIMUM PERCENTAGE") of the total number of issued and
outstanding shares of Common Stock (including for such purpose the shares of
Common Stock issuable upon such exercise).
7
For such purposes, beneficial ownership shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. Each delivery of an Exercise Notice hereunder will constitute a
representation by the Holder that it has evaluated the limitation set forth in
this paragraph and determined that issuance of the full number of Additional
Investment Right Shares requested in such Exercise Notice is permitted under
this paragraph. The Company's obligation to issue shares of Common Stock in
excess of the limitation referred to in this Section shall be suspended (and,
except as provided below, shall not terminate or expire notwithstanding any
contrary provisions hereof) until such time, if any, as such shares of Common
Stock may be issued in compliance with such limitation; provided that, if, as of
6:30 p.m., New York City time on the Expiration Date, the Company has not
received written notice that the shares of Common Stock may be issued in
compliance with such limitation, the Company's obligation to issue such shares
shall terminate. By written notice to the Company, the Holder may waive the
provisions of this Section or increase or decrease the Maximum Percentage to any
other percentage specified in such notice, but (i) any such waiver or increase
will not be effective until the 61st day after such notice is delivered to the
Company, and (ii) any such waiver or increase or decrease will apply only to the
Holder and not to any other holder of Additional Investment Rights.
12. Fractional Shares. The Company shall not be required to issue or
cause to be issued fractional Additional Investment Right Shares on the exercise
of this Additional Investment Right. If any fraction of a Additional Investment
Right Share would, except for the provisions of this Section, be issuable upon
exercise of this Additional Investment Right, the number of Additional
Investment Right Shares to be issued will be rounded up to the nearest whole
share.
13. Notices. Any and all notices or other communications or deliveries
hereunder (including without limitation any Exercise Notice) shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section prior to 6:30 p.m. (New York City
time) on a Trading Day, (ii) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section on a day that is not a Trading Day or
later than 6:30 p.m. (New York City time) on any Trading Day, (iii) the Trading
Day following the date of deposit with a nationally recognized overnight courier
service, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address and facsimile numbers for such notices or
communications shall be as set forth in the Purchase Agreement.
14. Additional Investment Right Agent. The Company shall serve as
additional investment right agent under this Additional Investment Right. Upon
30 days' notice to the Holder, the Company may appoint a new additional
investment right agent. Any corporation into which the Company or any new
additional investment right agent may be merged or any corporation resulting
from any consolidation to which the Company or any new additional investment
right agent shall be a party or any corporation to which the Company or any new
additional investment right agent transfers substantially all of its corporate
trust or stockholder services business shall be a successor additional
investment right agent under this Additional
8
Investment Right without any further act. Any such successor additional
investment right agent shall promptly cause notice of its succession as
additional investment right agent to be mailed (by first class mail, postage
prepaid) to the Holder at the Holder's last address as shown on the Additional
Investment Right Register.
15. Restrictions on Transfers. From the date of the initial exercise of
this Additional Investment Right (if any) until the six (6) month anniversary of
such initial exercise, the Holder agrees that it shall maintain Beneficial
Ownership of at least a number of shares of Common Stock equal to the number of
Additional Investment Right Shares purchased under this Additional Investment
Right.
16. Miscellaneous.
(a) Subject to the restrictions on transfer set forth on the first page
hereof and in Section 15, this Additional Investment Right may be transferred or
assigned by the Holder; provided that the Company's obligation to register such
transfer or assignment and right to recognize the registered Holder as the
absolute owner hereof shall be as set forth in Section 3 and Section 2,
respectively. This Additional Investment Right may not be assigned by the
Company except to a successor in the event of a Fundamental Transaction. This
Additional Investment Right shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns. Subject to the
preceding sentence, nothing in this Additional Investment Right shall be
construed to give to any Person other than the Company and the Holder any legal
or equitable right, remedy or cause of action under this Additional Investment
Right. This Additional Investment Right may be amended only in writing signed by
the Company and the Holder, or their respective successors and assigns.
(b) The Company will not, by amendment of its governing documents or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this
Additional Investment Right, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder against
impairment. Without limiting the generality of the foregoing, the Company (i)
will not increase the par value of any Additional Investment Right Shares above
the amount payable therefor on such exercise, (ii) will take all such action as
may be reasonably necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable Additional Investment Right
Shares on the exercise of this Additional Investment Right, and (iii) will not
close its stockholder books or records in any manner which interferes with the
timely exercise of this Additional Investment Right.
(c) GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. THE CORPORATE LAWS OF
THE STATE OF DELAWARE SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF
THE COMPANY AND ITS STOCKHOLDERS AND ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS ADDITIONAL INVESTMENT RIGHT.
EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE
AND FEDERAL COURTS SITTING IN THE STATE OF DELAWARE FOR THE ADJUDICATION OF ANY
DISPUTE
9
HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY
OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE
TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT
IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT
TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND
CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY
MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY
(WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES
TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD
AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN
SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW. THE COMPANY HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.
(d) The headings herein are for convenience only, do not constitute a
part of this Additional Investment Right and shall not be deemed to limit or
affect any of the provisions hereof.
(e) In case any one or more of the provisions of this Additional
Investment Right shall be invalid or unenforceable in any respect, the validity
and enforceability of the remaining terms and provisions of this Additional
Investment Right shall not in any way be affected or impaired thereby and the
parties will attempt in good faith to agree upon a valid and enforceable
provision which shall be a commercially reasonable substitute therefor and, upon
such agreement, shall incorporate such substitute provision in this Additional
Investment Right.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Additional Investment
Right to be duly executed by its authorized officer as of the date first
indicated above.
BLUE RHINO CORPORATION
By: ____________________
Name: __________________
Title: _________________
11
FORM OF EXERCISE NOTICE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the foregoing Additional Investment Right)
To: Blue Rhino Corporation
The undersigned is the Holder of Additional Investment Right No. _______ (the
"ADDITIONAL INVESTMENT RIGHT") issued by Blue Rhino Corporation, a Delaware
corporation (the "COMPANY"). Capitalized terms used herein and not otherwise
defined have the respective meanings set forth in the Additional Investment
Right.
1. The Additional Investment Right is currently exercisable to purchase a
total of ______________ Additional Investment Right Shares.
2. The undersigned Holder hereby exercises its right to purchase
_________________ Additional Investment Right Shares pursuant to the
Additional Investment Right.
3. The holder shall pay the sum of $____________ to the Company in
accordance with the terms of the Additional Investment Right.
4. Pursuant to this exercise, the Company shall deliver to the holder
_______________ Additional Investment Right Shares in accordance with
the terms of the Additional Investment Right.
5. Following this exercise, the Additional Investment Right shall be
exercisable to purchase a total of ______________ Additional Investment
Right Shares.
Dated:_______________, _____ Name of Holder:
(Print)________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
(Signature must conform in all respects to
name of holder as specified on the face of
the Additional Investment Right)
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Additional Investment Right]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Additional Investment Right to purchase ____________ shares of Common Stock of
Blue Rhino Corporation to which the within Additional Investment Right relates
and appoints ________________ attorney to transfer said right on the books of
Blue Rhino Corporation with full power of substitution in the premises.
Dated:_______________, _____
__________________________________________
(Signature must conform in all respects to
name of holder as specified on the face of
the Additional Investment Right)
__________________________________________
Address of Transferee
__________________________________________
__________________________________________
In the presence of:
_____________________________
