STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is dated as of April
19, 2002, by and between Blue Rhino Corporation, a Delaware corporation located
at 000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000 (the
"Company"), and the various purchasers identified and listed on Schedule 1
attached hereto (each, a "Purchaser," and collectively, the "Purchasers").
SECTION 1
SALE OF COMMON STOCK
Subject to the terms and conditions hereof, the Company has offered,
and will issue and sell (the "Offering") to the Purchasers, and the Purchasers
will buy from the Company, a total of 1,500,000 shares of common stock, $0.001
par value per share, of the Company (the "Common Stock") for the purchase price
of $7.25 per share, with each Purchaser purchasing the number of shares of
Common Stock for the aggregate cash purchase price indicated on Schedule 1
attached hereto. The shares of Common Stock to be issued and sold by the
Company and purchased by the Purchasers pursuant to this Agreement are herein
referred to as the "Shares." This Agreement and each Purchaser's obligation
hereunder are not conditioned on the sale of any minimum number of Shares.
The Shares will be offered and sold 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
Regulation D thereunder. The Company has prepared and delivered to each
Purchaser copies of an Offering Memorandum, dated April 9, 2002 (as it may be
amended or supplemented, and including the exhibits and/or schedules thereto
and the information incorporated therein by reference, the "Offering
Memorandum").
The Purchasers (and any subsequent transferees) will be entitled to
the benefits of a Registration Rights Agreement, to be dated as of the date
hereof (as attached hereto as Exhibit A, the "Registration Rights Agreement"),
by and among the Company and the Purchasers. Pursuant to the Registration
Rights Agreement, the Company will file with the Securities and Exchange
Commission (the "SEC" or the "Commission") a shelf registration statement on
Form S-3 pursuant to SEC Rule 415 (the "Registration Statement") under the
Securities Act relating to the resale of the Shares by the Purchasers.
SECTION 2
CLOSING; DELIVERY
2.1. CLOSING. The closing of the purchase and sale of the Shares
hereunder (the "Closing") shall be held at the executive offices of the
Company, or at such other place upon which the Company and the Purchasers shall
agree. The Closing shall occur simultaneously with or immediately after the
execution and delivery of this Agreement by the Purchasers and the Company, or
on such later date as the Company, the Purchasers and SunTrust Xxxxxxxx
Xxxxxxxx Capital Markets, as the exclusive placement agent of the Company for
the offering (the "Placement Agent"), may agree.
2.2. DELIVERY. At the Closing, or within a reasonable period of
time thereafter, the Company will deliver to each Purchaser a certificate,
registered in the name of such Purchaser as shown in Schedule 2 attached
hereto, for the number of Shares to be purchased by such Purchaser against
payment of the purchase price therefor by wire transfer per the Company's
wiring instructions. If, at the time of Closing,
the Shares are eligible for clearance and settlement through The Depository
Trust Company ("DTC"), then the Company may deliver the Shares to the
Purchasers in book-entry form through DTC.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents, warrants and covenants to the Purchasers and
the Placement Agent as follows:
3.1. ORGANIZATION AND STANDING; ARTICLES AND BY-LAWS. The Company
and each of its subsidiaries is a corporation or other entity duly organized,
validly existing and in good standing under the laws of the State of its
organization. The Company and each of its subsidiaries has the requisite power
and authority to own and operate its properties and assets and to carry on its
business as presently conducted and as now proposed to be conducted. The
Company and each of its subsidiaries is qualified to do business as a foreign
corporation in all jurisdictions where the ownership of its properties and
assets and the conduct of its business requires such qualification, except
where the failure to be so qualified will not have a material adverse effect on
the business of the Company and its subsidiaries taken as a whole, as such
business is now conducted or as now proposed to be conducted. The Company has
furnished, or as soon as practicable, and in no event later than the day
immediately prior to Closing, will furnish, to each of the Purchasers true and
correct copies of the Company's Restated Certificate of Incorporation, as
amended and as in effect on the date hereof (the "Certificate of
Incorporation"), and certified by the Secretary of State of the State of
Delaware within 10 business days prior to the Closing, and the Company's
Bylaws, as in effect on the date hereof (the "Bylaws"), certified by the
Company's Secretary. Except as disclosed in Schedule 3.1, if any, the Company
owns 100% of all shares of capital stock and other equity interests in each of
its subsidiaries, free of all security interests, liens, pledges or negative
pledges, charge, encumbrances, mortgages, hypothecations, adverse claims or
equities (each, a "Lien"), except that Bank of America has a Lien on the
Company's 49% ownership interest in X0 Xxxxxxxxx Xxxxxx xx Xxxxx Xxxxxxxx, LLC
("R4 Tech").
3.2. CORPORATE POWER. The Company has all requisite legal and
corporate power and authority to execute and deliver this Agreement and to
execute and deliver the agreements set forth as Exhibits hereto (collectively
with this Agreement, the "Agreements"), to sell and issue the Shares as set
forth in the Agreements at the Closing, and to carry out and perform its
obligations under the Agreements.
3.3. SUBSIDIARIES. The Company has those subsidiaries or
affiliated companies shown on Schedule 3.3, and does not otherwise own or
control, directly or indirectly, any equity interest in any corporation,
association or business entity, other than as shown in Schedule 3.3 hereto.
3.4. CAPITALIZATION. As of the date hereof, the authorized capital
stock of the Company consists of 100,000,000 shares of Common Stock and
20,000,000 shares of Preferred Stock (the "Preferred Stock"). As of March 31,
2002, there were 9,416,739 shares of Common Stock issued and outstanding and
2,840,100 shares of Series A Convertible Preferred Stock issued and outstanding
(convertible as of that date into 2,840,100 shares of Common Stock). No other
shares of capital stock are issued and outstanding. As of March 31, 2002, there
were options and warrants outstanding issued by the Company to purchase an
aggregate of 3,255,280 and 2,910,295 shares of Common Stock, respectively. All
of the outstanding shares of Common Stock and Preferred Stock are duly
authorized, validly issued, fully paid and nonassessable, and all such shares
were issued in material compliance with all applicable federal and state
securities laws, including available exemptions therefrom, and none of such
issuances were made in violation of any pre-emptive or other rights. The
Company has reserved 4,313,725 shares of Common
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Stock for issuance pursuant to its stock option and stock purchase plans.
Except as set forth above, there are no options, warrants or other rights
(including conversion, pre-emptive or other rights) or agreements outstanding
to purchase any of the Company's authorized and unissued capital stock.
3.5. AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution, delivery and performance of the Agreements by the
Company, and for the authorization, the sale, issuance and delivery of the
Shares, has been taken or will be taken prior to the Closing. The Agreements
have been duly executed and delivered by the Company, and constitute valid and
binding obligations of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and to general principles of equity and
to limitations on the rights to indemnity and contribution that exist by virtue
of public policy (the "Bankruptcy and Equity Exception"). The Shares, when
issued pursuant to this Agreement, will be validly issued, fully paid and
nonassessable.
3.6. REPORTS AND FINANCIAL STATEMENTS. (a) The Company has
delivered or made available upon request to the Purchasers prior to the
execution of this Agreement a copy of the Company's Annual Report on Form 10-K
for the year ended July 31, 2001, as amended on Form 10-K/A filed on April 4,
2002, the Company's Quarterly Reports on Form 10-Q that have been filed for all
quarters ended since July 31, 2001, as amended on Form 10-Q/A filed on April 5,
2002, the definitive proxy statement for the Company's 2001 annual meeting of
stockholders and all Current Reports on Form 8-K filed since July 31, 2001, as
such documents have since the time of their filing been amended or supplemented
(together with all reports, documents and information hereafter filed with the
SEC, including all information incorporated therein by reference, collectively,
the "SEC Reports"). The SEC Reports (a) complied and will comply as to form in
all material respects with the requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and (b) did
not contain and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The audited consolidated financial statements
and unaudited interim consolidated financial statements (including, in each
case, the notes, if any, thereto) included in the SEC Reports complied and will
comply as to form in all material respects with the SEC's rules and regulations
with respect thereto), were prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved
(except as may be indicated therein or in the notes thereto) and fairly present
(subject, in the case of the unaudited interim financial statements, to normal,
recurring year-end audit adjustments not material and to the absence of
footnotes) the financial position and stockholders' equity of the Company as of
the respective dates thereof and the consolidated cash flows for the respective
periods then ended.
(b) The summary, selected and pro forma financial and statistical
data included in the Offering Memorandum present fairly the information shown
therein and, excluding projections for the year ending July 31, 2002 (which
have been compiled on a basis consistent with the Company's earnings release
made in February 2002), have been compiled on a basis consistent with the
financial statements included in the SEC Reports.
(c) The Company has a duly constituted audit committee of its
Board of Directors (the "Audit Committee"), all of whose members are
"independent" and such committee has operated in accordance with applicable law
and regulations, the requirements of any securities exchange or Nasdaq market
on which the Company's securities are traded or listed. The Company's
independent public accountants have reviewed each interim financial statement
in accordance with the requirements of applicable federal securities laws, the
Audit Committee's charter, the Commission's rules and regulations and the
applicable rules of Nasdaq or any securities exchange on which the Company has
securities listed
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or traded. The Company has received no communications from its independent
public accountants that the independent public accountants are considering or
are likely to consider issuing any report other than a clean, unqualified
opinion as to the Company's audited financial statements for the fiscal year
ending July 31, 2002 or have raised any unresolved issues with respect to any
of the Company's interim financial statements.
3.7. DISCLOSURES. The Offering Memorandum, as amended or
supplemented, did not and will not, as of the date thereof through the Closing
Date, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The Company
has provided to each prospective offeree of the Shares who has requested
further information concerning the Company and its subsidiaries such
information (to the extent that such information is available or can be
acquired and made available to prospective Purchasers without unreasonable
effort or expense and to the extent the provision thereof is not prohibited by
applicable law), and such offerees have had the opportunity to ask questions
and receive answers concerning the terms of the Offering and to obtain
information about the Company and its subsidiaries and the Offering. Neither
the consent of the Placement Agent, nor the Placement Agent's delivery of any
such amendment or supplement to the Offering Memorandum, shall constitute a
waiver of any of the Company's representations and warranties or any of the
conditions set forth in Section 6 hereof.
3.8. NO INTEGRATION. The Company has not, directly or through any
agent, during the six-month period ending on the date of this Agreement, sold,
offered for sale, solicited offers to buy or otherwise negotiated in respect
of, any security (as defined in the Securities Act) in a manner that would
cause the offer and sale of the Shares to fail to be entitled to the exemption
afforded by Rule 506 of Regulation D or under Section 4(2) of the Securities
Act.
3.9. NO PUBLIC OFFERING. The Company has not engaged, in
connection with the offering of the Shares, (i) in any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act, (ii) in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act, (iii) in any action which would
violate applicable state securities, or "blue sky" laws, or in any directed
selling efforts within the meaning of SEC Regulation S.
3.10. CONFORMITY OF DESCRIPTIONS. The Shares conform in all
material respects to any descriptions contained in the Company's SEC Reports
and other filings with the SEC.
3.11. NO MATERIAL ADVERSE CHANGES. Except as disclosed on Schedule
3.11, if any, or in the SEC Reports filed not less than five (5) business days
prior to the date hereof, there has been no (i) material adverse change in the
business, results of operations, stockholders' equity, cash flows or financial
condition of the Company and its subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business (a "Material Adverse Effect"), or
(ii) dividend or distribution of any kind declared or paid by the Company on
any shares of its capital stock.
3.12. NO CONFLICTS. The execution, delivery and performance of the
Agreements, the issuance and delivery of the Shares by the Company and the
consummation by the Company of the transactions contemplated herein and in the
other Agreements do not and will not (i) conflict with or violate any provision
of the Certificate of Incorporation, Bylaws or other organizational documents
of the Company or any of its subsidiaries, (ii) conflict with, or constitute a
default (or an event which, with notice or lapse of time or both, would become
a default) under, or give to other Persons any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture, patent,
license or instrument (whether evidencing a Company debt or otherwise) to which
the Company or any of its subsidiaries is a
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party or by which any property or asset of the Company or any of its
subsidiaries is bound or affected or (iii) result in a violation of any law,
rule, regulation, order, judgment, injunction, decree or other restriction of
any court or governmental authority to which the Company or any of its
subsidiaries is subject (including federal and state securities laws and
regulations and the rules and regulations of the principal market, system or
exchange on which the Common Stock is traded, quoted or listed), or by which
any assets of the Company or its subsidiaries is bound or affected.
3.13. CONSENTS AND APPROVALS. None of the Company or any of its
subsidiaries is required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration ("Consents") with,
any court or other federal, state, local or other governmental authority,
regulatory or self regulatory agency ("Governmental Authorities"), or other
Person in connection with the execution, delivery and performance by the
Company of the Agreements, other than (i) the filing of the Registration
Statement with the Commission in accordance with the Registration Rights
Agreement, (ii) the application(s) or any letter(s) acceptable to the Nasdaq
National Market ("Nasdaq") for the listing or quoting of the Shares on Nasdaq
(and with any other national securities exchange or market on which the Common
Stock is then traded, listed or quoted), and the notice, if any, required by
Nasdaq Rule 4310, which has been filed as shown in Schedule 3.13, (iii) any
filings, notices or registrations under applicable state securities laws, (iv)
the disclosure requirements of the Exchange Act, and the disclosure
requirements of Item 701 of SEC Regulation S-K, and (v) filing a Form D and a
Form 8-K with the Commission (collectively, the Required Approvals").
3.14. PROCEEDINGS. There is no action, suit, hearing, claim, notice
of violation, arbitration or other proceeding, hearing or investigation (each,
a "Proceeding") pending or, to the knowledge of the Company, threatened against
or affecting the Company or any of its respective subsidiaries or any of their
assets before or by any Governmental Authority or any arbitrator, which (i)
adversely affects or challenges the legality, validity or enforceability of any
of the Agreements, (ii) could reasonably be expected to, individually or in the
aggregate, have or result in a Material Adverse Effect, or (iii) if adversely
decided, could reasonably be expected to have a material adverse effect on or
delay the issuance of the Shares, or the consummation of the transactions
contemplated by the Agreement.
3.15. NO DEFAULT OR VIOLATION. Except for those that would not,
individually or in the aggregate, result in a Material Adverse Effect, none of
the Company or its subsidiaries is in (i) default under or in violation of any
indenture, loan or other credit agreement or any other agreement or instrument
to which it is a party or by which any of them or their assets or properties is
bound, or (ii) violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any arbitrator or Governmental
Authority applicable to it. None of the Company or any of its subsidiaries is
in default under, or in violation of, its Certificate of Incorporation, Bylaws
or other organizational documents or in default under or in violation of any of
the listing or, quotation requirements of Nasdaq as in effect on the date
hereof and the Company is not aware of any facts which would reasonably lead to
delisting or suspension of trading in the Common Stock by Nasdaq in the
foreseeable future. The business of the Company and its subsidiaries is not
being conducted, and shall not be conducted, in violation of any law, statute,
ordinance, rule or regulation of any Governmental Authority, except where such
violations have not resulted or are not reasonably likely to result,
individually or in the aggregate, in a Material Adverse Effect. None of the
Company or its subsidiaries is in breach of any agreement where such breach,
individually or in the aggregate, is reasonably likely to have a Material
Adverse Effect.
3.16. BROKER'S FEES. No fees or commissions or similar payments
with respect to the transactions contemplated by the Agreements have been paid
or will be payable by the Company to any broker, financial advisor, finder,
investment banker or bank, other than fees payable to the Placement
5
Agent, and the Company shall indemnify and hold harmless the Purchasers and the
Placement Agent from and against any such claims.
3.17. LISTING COMPLIANCE. The principal market on which the Common
Stock is currently traded is Nasdaq. Except as disclosed on Schedule 3.17, if
any, the Company has not in the three (3) years preceding the date hereof
received notice (written or oral) from Nasdaq (or any stock exchange, market or
trading facility on which the Common Stock is or has been traded or listed (or
on which it has been quoted)) to the effect that the Company is not in
compliance with the listing or maintenance requirements of any such market,
exchange or trading facility. After giving effect to the transactions
contemplated by the Agreements, the Company is and will be in compliance with
all such maintenance requirements.
3.18. INTELLECTUAL PROPERTY RIGHTS. The Company or its subsidiaries
own or possess adequate rights or licenses to use all trademarks, trademark
applications, trade names and service marks, whether or not registered, and all
patents, patent applications, copyrights, inventions, licenses, approvals,
governmental authorizations, trade secrets and intellectual property rights
(collectively, "Intellectual Property Rights") which are necessary for use in
connection with its business as now conducted and as described in the SEC
Reports. The Company has no knowledge that it or any of its subsidiaries has
infringed, and none of the Company or any of its subsidiaries is infringing on,
any of the Intellectual Property Rights of any Person. Except as disclosed in
the Company's SEC Reports or the Offering Memorandum, there is no Proceeding
pending or, to the Company's knowledge, threatened against the Company
regarding the infringement of any of the Intellectual Property Rights. The
Company and its Subsidiaries have taken reasonable security measures to protect
the secrecy, confidentiality and value of its Intellectual Property Rights.
3.19. REGISTRATION RIGHTS; RIGHTS OF PARTICIPATION. Except as
described on Schedule 3.19 and except for rights that have been expressly
waived prior to the date hereof, (i) the Company has not granted or agreed to
grant to any Person any rights (including "piggy-back" registration rights) to
have any securities of the Company registered with the Commission or any other
Governmental Authority which have not been satisfied, and (ii) no Person,
including current or former stockholders of the Company, underwriters, brokers
or agents, has any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the transactions
contemplated by the Agreements or to require that the Company include any such
securities in the registration of Shares as contemplated herein.
3.20. TITLE. Except as disclosed on Schedule 3.20, the Company has
good and marketable title in fee simple to all property owned by it and its
subsidiaries, in each case free and clear of all Liens, except for Liens that
do not materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company and its
subsidiaries. Any properties held or used under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable leases,
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such properties by the Company and its subsidiaries.
3.21. PERMITS. The Company and its subsidiaries possess all
certificates, authorizations, licenses, easements, consents, approvals, orders,
permits and approvals ("Permits") necessary to own, lease and operate its
properties and to conduct their businesses as currently conducted (excluding
Permits required to be obtained by the Company's distributors for the conduct
of their businesses) except where the failure to possess such Permits is not
reasonably likely, individually or in the aggregate, to have a Material Adverse
Effect ("Material Permits"), and there is no Proceeding pending, or, to the
knowledge of the Company, threatened relating to the revocation, modification,
suspension or cancellation of any Material Permit. The Company and its
subsidiaries have fulfilled and performed all of the material
6
obligations with respect to such Permits, and no event or change in condition
has occurred which allows, or which upon notice, the lapse of time or both
would allow, the revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such Permits, except for
failures which would not, individually or in the aggregate, have a Material
Adverse Effect. The Company and its subsidiaries are not in conflict with, in
default under or in violation of any Material Permit.
3.22. INSURANCE. The Company and its subsidiaries, and their
respective properties are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as management
believes is prudent and customary in the business in which the Company and its
subsidiaries are engaged. Except as disclosed on Schedule 3.22, the Company has
no reason to believe that it will not be able to renew such existing insurance
policies as and when such coverage expires or to obtain similar coverage from
similar insurers, at a cost that would not materially and adversely affect the
condition, financial or otherwise, or the earnings, cash flows, business or
business prospects of the Company and its subsidiaries, taken as a whole.
3.23. INVESTMENT COMPANY. None of the Company or any of its
subsidiaries is an "investment company" or a company "controlled by" an
"investment company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act"), and the SEC's rules and regulations
thereunder.
3.24. NO STABILIZATION. Neither the Company nor any of its
directors, officers, subsidiaries or controlling persons has taken or will
take, directly or indirectly, any action designed to, or which might reasonably
be expected to cause or result in, or which has constituted, under the Exchange
Act, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
3.25. LABOR. No strike, labor problem, dispute, slowdown, work
stoppage or disturbance with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is threatened.
3.26. STOCK AND OTHER PLANS. Other than as disclosed in the SEC
Reports, none of the Company and its subsidiaries have any profit sharing,
deferred compensation, stock option, stock purchase, phantom stock or similar
plans, including agreements evidencing rights to purchase securities or to
share in the profits of the Company which is material to the Company and its
subsidiaries, taken as a whole.
3.27. SOLVENCY. Except as disclosed on Schedule 3.27, the Company
and each of its "significant subsidiaries" (as that term is defined by Rule
1-02 of Regulation S-X promulgated under the Securities Act, but specifically
excluding R4 Tech) are, and immediately after the Closing will be, Solvent. As
used herein, the term "Solvent" means, with respect to a particular date, that
on such date, (i) the fair market value of the total assets of each of the
Company and its subsidiaries exceeds their respective total liabilities
(including, without limitation, stated liabilities and contingent liabilities),
and (ii) the Company and each of its subsidiaries is currently able to pay its
debts as they come due or mature. None of the Company nor any of its
"significant subsidiaries" has taken any steps, and does not currently expect
to take any steps, to seek protection pursuant to any bankruptcy, insolvency,
debtor relief, reorganization or similar law, nor does the Company have any
knowledge or reason to believe that creditors of the Company and its
subsidiaries have initiated or intend to initiate involuntary bankruptcy or
similar proceedings.
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3.28. ENVIRONMENTAL. Except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (i) the
Company and its subsidiaries are in compliance with and not subject to any
known liability under applicable Environmental Laws (as defined below), (ii)
the Company and each of its subsidiaries has made all filings and provided all
notices required under all applicable Environmental Laws, and has, and is in
compliance with, all permits required under any applicable Environmental Laws,
each of which is in full force and effect, (iii) (a) there are no pending
Proceedings with respect to any Environmental Laws affecting the Company, (b)
the Company and its subsidiaries have not received any demand, claim or notice
of violation of any Environmental Laws and (c) to the knowledge of the Company,
there is no Proceeding, notice or demand letter or request for information
threatened against the Company or any of its subsidiaries under any
Environmental Law, (iv) no Lien or restriction has been recorded under any
Environmental Law with respect to any assets, facility or property owned,
operated, leased or controlled by the Company or any of its subsidiaries, (v)
none of the Company or any of its subsidiaries has received notice that it has
been identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or any comparable state law, (vi) no property or facility of the
Company (a) is listed or, to the knowledge of the Company, proposed for listing
on the National Priorities List under CERCLA or (b) is listed in the
Comprehensive Environmental Response, Compensation, Liability Information
System List promulgated pursuant to CERCLA, or on any comparable list
maintained by any state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means all
applicable federal, provincial, state and local laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder, relating to pollution, protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
Hazardous Materials (as defined below) into the environment (including, without
limitation, ambient air, surface water, ground water, land surface or
subsurface strata), (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of Hazardous
Materials, and (iii) underground and above ground storage tanks and related
piping, and emissions, discharges, releases or threatened releases therefrom.
The term "Hazardous Material" means (a) any "hazardous substance," as defined
in the Comprehensive Environmental Response, the Resource Conservation and
Recovery Act, as amended, (b) any "hazardous waste," as defined by the Resource
Conservation and Recovery Act, as amended, (c) any petroleum or petroleum
product, (d) any polychlorinated biphenyl and (e) any pollutant or contaminant
or hazardous, dangerous or toxic chemical, material, waste or substance.
3.29. ERISA. None of the Company or any of its subsidiaries has
incurred any liability for any prohibited transaction or funding deficiency or
any complete or partial withdrawal liability with respect to any pension,
profit sharing or other plan ("Plans") which is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), to which the
Company or any of its subsidiaries makes or ever has made a contribution and
which would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect. With respect to such Plans, the Company and each of
its subsidiaries is in compliance in all respects with all applicable
provisions of ERISA and have performed all their respective obligations under
such Plans, except where the failure to so comply would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
3.30. FORM S-3 ELIGIBILITY. The Company meets the requirements for
use of SEC Form S-3 under the Securities Act for a secondary resale offering
and is eligible for filing and maintaining a registration statement on Form S-3
relating to the resale of the Shares by the Purchasers.
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3.31. TAXES. The Company and each of its subsidiaries has made or
filed all federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject (unless and
only to the extent that the Company has set aside on its books provisions
reasonably adequate for the payment of all unpaid and unreported taxes) and has
paid all taxes and other governmental assessments and charges that are shown or
determined to be due on such returns, reports and declarations or otherwise,
except those being contested in good faith and for which adequate reserves are
shown in the Company's SEC Reports. There are no unpaid taxes in any material
amount claimed to be due from the Company by the taxing authority of any
jurisdiction, and the officers of the Company know of no basis for any such
claim.
SECTION 4
COVENANTS OF THE COMPANY
The Company hereby covenants with the Purchasers and the Placement
Agent as follows:
4.1. NOTIFICATION OF CERTAIN EVENTS. From the date hereof until
the effective date ("Effective Date") of the Registration Statement, the
Company will immediately notify each Purchaser and the Placement Agent, and
confirm such notice in writing, of any material changes in or affecting the
financial condition, earnings, cash flows, stockholders' equity or business of
the Company and its subsidiaries taken as a whole.
4.2. OFFERING LIMITATIONS. Except with respect to transactions
pursuant to the Company's Employee Stock Purchase Plan, consistent with past
practice, and the Company's option plans, the Company will not solicit any
offer to buy or offer to sell shares of Common Stock or securities convertible
into or exchangeable for Common Stock by means of any form of general
solicitation or general advertising (as such terms are used in Regulation D
under the Securities Act) or in any manner involving a public offering (within
the meaning of Section 4(2) of the Securities Act) prior to the Effective Date.
4.3. INTEGRATION. The Company will not offer, sell or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
the Securities Act) in a manner that would cause the offer and sale of the
Shares to the Purchasers to fail to be entitled to the exemption from
registration afforded by Rule 506 of Regulation D and Section 4(2) of the
Securities Act.
4.4. DISCLOSURES. The Company, promptly following the Closing,
will (i) issue a press release, in a form reasonably acceptable to the
Placement Agent announcing the sale of the Shares through the Placement Agent,
(ii) file such press release and other appropriate information with the SEC on
Form 8-K and (iii) include in the filing of its next Form 10-Q or Form 10-K, as
applicable, appropriate disclosures relating to the sale of the Shares,
including, without limitation, the disclosure required by Item 701 of
Regulation S-K. The Company shall, from and after the Closing through the
period that the Registration Statement is required to be maintained, timely
file all SEC Reports, comply with all requirements under the Exchange Act,
continue to list the Shares on Nasdaq or a national securities exchange, and
otherwise comply with the requirements of Sections 3.6 and 3.30 hereof.
4.5. DTC ELIGIBILITY. The Company will use commercially reasonable
efforts and cooperate with the Purchasers to permit the Shares to be eligible
for clearance and settlement through DTC.
4.6. USE OF PROCEEDS. The Company will use the proceeds from the
sale of the Shares in the manner specified in the Offering Memorandum under the
caption "Use of Proceeds."
9
SECTION 5
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally and not jointly, hereby represents, warrants
and covenants to the Company and the Placement Agent with respect to the
purchase of the Shares by such Purchaser as follows:
5.1. EXPERIENCE. Such Purchaser has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company, and the Purchaser is capable of evaluating
the merits and risks of its investment in the Company and has the capacity to
protect its own interests.
5.2. QUALIFIED INSTITUTIONAL BUYER; ACCREDITED INVESTOR. Such
Purchaser is a "qualified institutional buyer," as defined in Rule 144A of the
Securities Act, or an "accredited investor," as defined in SEC Regulation D
promulgated pursuant to the Securities Act.
5.3. RULE 144. Such Purchaser acknowledges that the Shares must be
held indefinitely unless subsequently registered for resale under the
Securities Act or unless an exemption from such registration is available. Such
Purchaser is aware of the provisions of Rule 144 promulgated under the
Securities Act which permit limited resale of securities purchased in a private
placement, subject to the satisfaction of certain conditions, including, among
other things, the existence of a public market for the shares, the availability
of certain current public information about the Company, the resale occurring
not less than one year after a party has purchased and fully paid for the
security to be sold, the sale being effected through a "broker's transaction"
or in a transaction directly with a "market maker" and the number of shares
being sold during any three-month period not exceeding specified limitations.
5.4. CONFIDENTIAL ACCESS TO INFORMATION. Such Purchaser has had an
opportunity to discuss the Company's business, management and financial affairs
with its management. It has also had an opportunity to ask questions of
officers of the Company, which questions were answered to its satisfaction.
Such Purchaser understands that such discussions, as well as any written
information issued by the Company, were intended to describe certain aspects of
the Company's business and prospects. Pursuant to a confidentiality agreement,
as contemplated by the SEC's Regulation FD, such Purchaser acknowledges that it
has been provided access to material, non-public information and that the
Purchaser will keep all such information confidential except to the extent it
becomes public through no fault of the Purchaser. Further, the Purchaser
acknowledges and understands the fact that the Company is seeking to effect the
private placement of the Shares is material non-public information and
disclosure of such information or use of such information by the Purchasers or
anyone receiving such information from the Purchasers in connection with the
purchase, sale or trade of the Company's securities (other than use by the
Purchasers in acquiring the Shares), or any hedging, derivative or similar
transactions or activities involving the Company's securities, is a violation
of securities laws. THE PURCHASER UNDERSTANDS THAT ITS INVESTMENT IN THE SHARES
INVOLVES A HIGH DEGREE OF RISK.
5.5 ORGANIZATION; AUTHORIZATION. The Purchaser is a corporation,
a limited liability company or a partnership duly formed, validly existing and
in good standing under the laws of the jurisdiction of its organization with
the requisite power and authority, to enter into and to consummate the
transactions contemplated by the Agreements and otherwise to carry out its
obligations under the Agreements. The purchase by such Purchaser of the Shares
hereunder has been duly authorized by all necessary action on the part of such
Purchaser. This Agreement, when executed and delivered by such Purchaser, will
10
constitute a valid and binding obligation of the Purchaser, enforceable in
accordance with its terms, subject to the Bankruptcy and Equity Exception.
5.6. RESTRICTIVE LEGEND. Such Purchaser understands that the
certificates evidencing the Shares, will bear the following legends:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES, OR "BLUE
SKY," LAWS OF ANY STATE OR OTHER DOMESTIC OR FOREIGN JURISDICTION.
THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO A REGISTRATION
STATEMENT IN EFFECT UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS
OR A WRITTEN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED AND THAT AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE FOR SUCH TRANSACTIONS UNDER THE SECURITIES
ACT AND OTHER APPLICABLE LAWS."
In addition, the Purchasers acknowledge that each certificate for
Shares shall bear any additional legend required by any other applicable
domestic or foreign securities or blue sky laws.
The Company will direct its transfer agent and registrar to maintain
stop transfer instructions on record for the Shares until it has been notified
by the Company, upon the advice of counsel, that such instructions may be
waived consistent with the Securities Act and applicable domestic and foreign
securities laws. Such stop transfer instructions will limit the method of sale
of the Shares, consistent with Rule 144 or other available exemptions from
registration under the Securities Act. Any transfers other than pursuant to an
effective registration statement will require an opinion of counsel reasonably
satisfactory to the Company and its counsel prior to such transfers.
5.7. NO GOVERNMENTAL REVIEW. Each Purchaser understands that no
United States federal or state agency or any other government or governmental
agency or authority has passed upon or made any recommendation or endorsement
of the Shares.
5.8. RESIDENCY. Such Purchaser is a resident of the jurisdiction
set forth immediately below such Purchaser's name on Schedule 1 hereto.
5.9. INVESTMENT INTENT. Such Purchaser is acquiring the Shares for
investment for its own account, not as a nominee or agent, and not with the
view to any distribution thereof. Such Purchaser understands and agrees that
the Shares have not been registered under the Securities Act by reason of the
exemption from the registration provisions of the Securities Act contained in
Rule 506 of Regulation D and Section 4(2) of the Securities Act, the
availability of which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of such Purchaser's representations,
warranties and covenants as expressed herein, which are being relied upon by
the Company and the Placement Agent.
11
SECTION 6
CONDITIONS TO PURCHASERS' AND PLACEMENT AGENT'S OBLIGATIONS TO CLOSE
The obligations of the Placement Agent to close, and of each Purchaser
to purchase the Shares at the Closing, is subject to the fulfillment of the
following conditions, any of which may be waived by a Purchaser:
6.1. REPRESENTATIONS AND WARRANTIES CORRECT. The representations
and warranties made by the Company herein shall be true and correct in all
material respects as of the date when made and as of the Closing.
6.2. COVENANTS. All covenants, agreements and conditions contained
in this Agreement to be performed by the Company on or prior to the Closing
shall have been performed or complied with in all material respects.
6.3. NO INJUNCTION. No statute, rule, regulation, order, decree,
ruling or injunction shall have been enacted, entered, promulgated, endorsed or
threatened or is pending by or before any Governmental Authority of competent
jurisdiction which restricts, prohibits or threatens to restrict or prohibit
the consummation of any of the transactions contemplated by the Agreements.
6.4. NO SUSPENSIONS OF TRADING IN COMMON STOCK. The trading in the
Common Stock shall not have been restricted or suspended by the Commission,
Nasdaq or any other market or exchange where such Common Stock is traded
(except for any suspension of trading of limited duration solely to permit
dissemination of material information regarding the Company).
6.5. LISTING OF COMMON STOCK. On the date of the Closing or as
soon as possible thereafter, the Shares shall have been listed for trading or
quotation on Nasdaq.
6.6 ADVERSE CHANGES. Since the date of the financial statements
included in the Company's Quarterly Report on Form 10-Q/A last filed prior to
the date of this Agreement, no event which has had or could reasonably be
expected to have a Material Adverse Effect shall have occurred which has not
been disclosed in writing to the Purchasers and the Placement Agent.
6.7. LITIGATION. No Proceeding shall have been instituted or
threatened against the Company which could reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect.
6.8. CHANGE OF CONTROL. No Change of Control shall have occurred
between the date hereof and the Closing. As used herein, "Change of Control"
means the occurrence of any of (i) an acquisition after the date hereof by an
individual or legal entity or "group" (as described in Rule 13d-5(b)(1)
promulgated under the Exchange Act), other than the Purchasers or any of their
affiliates (as defined in Rule 501(b) under the Securities Act) ("Affiliates"),
of in excess of 19.9% of the voting securities of the Company, (ii) a
replacement of more than one-half of the members of the Company's Board of
Directors that is not approved by a majority of those individuals who are
members of the Board of Directors on the date hereof, or their duly elected
successors who are directors immediately prior to such transaction, in one or a
series of related transactions, (iii) the merger of the Company with or into
another Person, unless following such transaction, the holders of the Company's
securities continue to hold at least 51% of the voting securities of the
surviving or continuing corporation following such transaction, (iv) the
consolidation or sale of all or substantially all of the assets of the Company
in one or a series of related
12
transactions or (v) the execution by the Company of an agreement to which the
Company is a party or by which it is bound, providing for any of the events set
forth above in clauses (i), (ii), (iii) or (iv).
6.9. CERTIFICATE OF INCORPORATION. The Company shall have
delivered to each of the Purchasers a copy of a certificate evidencing the
incorporation and good standing of the Company, issued by the Secretary of
State of the state where the Company is organized, as of a date within 10 days
of the Closing. The Company shall have delivered to each of the Purchasers, or
their representatives, acting on behalf of all of the Purchasers, a copy of a
certificate evidencing the qualification and good standing of the Company in
such other states or jurisdictions where the Company's ownership or operation
of its properties or the conduct of its business require the Company to be
qualified to do business as a foreign corporation, where the failure to be
qualified in good standing would have a Material Adverse Effect.
6.10. COMPLIANCE CERTIFICATE. Should the Closing occur as of a date
other than the date of this Agreement, the Company shall have delivered to the
Purchaser a certificate of the Company executed by the President of the
Company, dated as of the Closing, certifying to the fulfillment of the
conditions specified in Section 6 of this Agreement.
6.11. SECRETARY'S CERTIFICATE. The Company shall have delivered to
the Purchasers a certificate of the Company executed by the Chief Financial
Officer and the Secretary of the Company, dated as of the Closing, certifying
(i) resolutions adopted by the Board of Directors of the Company authorizing
the execution of the Agreements and the transactions contemplated hereby and
thereby, including the issuance of the Shares and the filing of the
Registration Statement; (ii) the Certificate of Incorporation and Bylaws of the
Company, each as amended, and copies of the third party consents, approvals and
filings required in connection with the consummation of the transactions
contemplated by the Agreements; and (iii) such other documents relating to the
transactions contemplated by the Agreements as the Purchasers or the Placement
Agent may reasonably request.
6.12. REGISTRATION RIGHTS AGREEMENT. The Company and the Purchasers
shall have executed, entered into and delivered the
Registration Rights Agreement, in substantially the form attached hereto as
Exhibit A.
6.13. OPINION OF COUNSEL. At the Closing, the Purchasers and the
Placement Agent shall have received the opinion of Xxxxxx Xxxxxxx Xxxxxxxxx &
Xxxx, dated as of Closing, in the form set forth below and otherwise reasonably
satisfactory to the Purchasers and the Placement Agent, and their respective
counsel substantially to the effect that:
(a) The Company is a corporation in existence and in
good standing under the laws of the State of Delaware, with corporate
power to execute, deliver and perform its obligations under this
Agreement, the Registration Rights Agreement and the other documents
and agreements to be executed by the Company at the Closing in
connection therewith (collectively, the "Operative Documents") and to
carry on its business as now conducted;
(b) The execution, delivery and performance by the
Company of each of the Operative Documents have been authorized by the
Company by all necessary corporate action;
(c) No Consent or other action by, or filing or
registration with, any Governmental Authority is required to be
obtained on or prior to the date hereof in connection with (i) the
execution, delivery and performance by the Company of the Operative
Documents and (ii) the offer, sale and issuance of the Shares in
accordance with the Operative Documents, except for
13
Consents, actions, filings or registrations that, if not obtained or
made, are not reasonably likely to have a Material Adverse Effect;
(d) The execution, delivery and performance by the
Company of its obligations under the Agreement and the other Operative
Documents (in each case assuming due authorization and execution by
each party other than the Company), and the consummation by the
Company of the transactions provided for therein (including the
issuance, sale and delivery of the Shares (other than with respect to
the delivery in book-entry form of Shares)) do not (i) violate any
provision of the Certificate of Incorporation or Bylaws, (ii) breach
or result in a default under any agreement listed in Annex A to this
opinion, or (iii) to our knowledge, violate any provision of any law,
rule or regulation or any order of any court or Governmental Authority
that is binding on the Company and known to such counsel to be
applicable to the Company;
(e) This Agreement and the Registration Rights Agreement
each have been duly authorized, executed and delivered by the Company
and, assuming the due execution and delivery thereof by the Purchasers
where applicable, are constitute valid and binding obligations of the
Company, enforceable against the Company;
(f) The Shares to be issued pursuant to the Agreement
have been duly authorized by all necessary corporate action on the
part of the Company and, when issued to a Purchaser against payment
therefor in accordance with the Agreement, will be validly issued,
fully paid and nonassessable;
(g) The Company is not an "investment company" or a
company "controlled by" or required to register as an investment
company as such terms are defined in the 1940 Act and the SEC's rules
and regulations thereunder; and
(h) Assuming the accuracy and completeness of the
Purchasers' representations and warranties in Section 5 of this
Agreement, the offer, sale and issuance of the Shares as contemplated
by the Agreement are exempt from the registration requirements under
Section 5 of the Securities Act.
Such opinions shall be accompanied by a statement of negative
assurance substantially to the following effect:
In addition, in the course of its assistance in the preparation of the
Offering Memorandum, such counsel participated in conferences with officers and
other representatives of the Company, the Placement Agent, counsel to the
Placement Agent and representatives of the independent public accountants of
the Company, at which conferences the contents of the Offering Memorandum were
discussed. Although such counsel does not pass upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Offering Memorandum and has not independently verified the
accuracy, completeness or fairness of such statements, on the basis of the
foregoing and the information that was disclosed to it (relying as to
materiality to the extent such counsel deemed appropriate upon the officers and
other representatives of the Company), (i) no facts came to its attention that
lead it to believe that the Offering Memorandum (including any document filed
under the 1934 Act and incorporated by reference therein), as of its effective
date, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading (except for the financial statements,
including the notes and schedules thereto and the auditor's report thereon, or
any other information of a financial, numerical, statistical or accounting
nature
14
set forth or referred to in the Offering Memorandum or any document
incorporated therein by reference or any exhibits thereto, as to which such
counsel expresses no view).
Such opinions may be subject to such assumptions, qualifications and
limitations that are customary and reasonably acceptable to the Purchaser and
the Placement Agent. Without limiting the generality of the foregoing, such
counsel (i) need not express any opinion with regard to the application of laws
of any jurisdiction other than the Federal law of the United States which are,
in such counsel's experience, normally directly applicable to the Offering and
the Delaware General Corporation Law, (ii) may rely, as to matters of fact, on
representations or certificates of responsible officers of the Company and
certificates of public officials, (iii) may express no opinion as to the effect
of (a) bankruptcy, insolvency, reorganization, arrangements, fraudulent
transfer, moratorium or similar laws relating to or affecting the rights of
creditors and (b) general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, the
exercise of judicial discretion, and the possible unavailability of specific
performance or injunctive relief, regardless of whether considered in a
proceeding in equity or at law, (iv) may express no opinion as to compliance
with the anti-fraud or information delivery provisions of applicable securities
laws, (v) may express no opinion as to compliance with the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, and (vi) may express no opinion
as to the enforceability of the indemnification provisions of the Operative
Documents to the extent the provisions thereof may be subject to limitations of
public policy and the effect of applicable statutes and judicial decisions.
6.14. OTHER DOCUMENTS. The Company shall have delivered to each
Purchaser such other documents relating to the transactions contemplated by the
Agreements as the Purchasers or their counsel may reasonably request.
SECTION 7
CONDITIONS TO CLOSING OF COMPANY
The Company's obligation to sell and issue the Shares at the Closing
is, at the option of the Company, subject to the fulfillment as of the Closing
of the following conditions:
7.1. REPRESENTATIONS. The representations and warranties made by
the Purchasers herein shall be true and correct in all material respects on the
dates made and on the date of Closing.
7.2. PERFORMANCE BY THE PURCHASERS. Each Purchaser shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by the Agreements to be performed, satisfied
or complied with by such Purchaser at or before the Closing.
7.3. NO INJUNCTION. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated,
endorsed or threatened or is pending by or before any Governmental Authority of
competent jurisdiction which prohibits or threatens to prohibit the
consummation of any of the transactions contemplated by the Agreements.
SECTION 8
MISCELLANEOUS
8.1. GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of North Carolina, without reference to its
conflict of laws principles.
15
8.2. SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive the closing of the transactions
contemplated hereby for a period of eighteen (18) months.
8.3. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto,
provided that the rights of the Purchasers to purchase the Shares shall not be
assignable without the consent of the Company.
8.4. NOTICES, ETC. All notices and other communications required
or permitted hereunder shall be in writing and shall be mailed by United States
mail, postage prepaid, by reliable overnight delivery service such as UPS or
FedEx, or by facsimile transmission, or otherwise delivered by hand or by
messenger, addressed (a) if to any Purchaser, at the Purchaser's address set
forth on Schedule 1, or at such other address as such Purchaser shall have
furnished to the Company in writing, or (b) if to any other holder of any
shares, at such address as such holder shall have furnished the Company in
writing, or, until any such holder so furnishes an address to the Company, then
to and at the address of the last holder of such shares who has so furnished an
address to the Company, or (c) if to the Company, one copy should be sent to
the Company at the address listed below, in each case with a copy to the
Placement Agent at the address also listed below.
Company: Placement Agent:
------- ---------------
Blue Rhino Corporation SunTrust Xxxxxxxx Xxxxxxxx
000 Xxxxxxxxx Xxxxx Xxxxx 0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx-Xxxxx, XX 00000 Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000 Attention: Xxxx Xxxxxxx
Attention: Xxxx Xxxx Facsimile: (000) 000-0000
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered, or if by
facsimile transmission, as indicated by the facsimile imprint date.
8.5. DELAYS OR OMISSIONS. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any
Purchaser or the Placement Agent upon any breach or default of the Company
under the Agreements shall impair any such right, power or remedy of such
Purchaser or Placement Agent, nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any Purchaser or the Placement Agent of any breach or
default under this Agreement, or any waiver on the part of any party hereto or
the Placement Agent of any provisions or conditions of this Agreement, must be
in writing and shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Agreement or by law or otherwise
afforded to any Purchaser, shall be cumulative and not alternative.
8.6. EXPENSES. The Company and the Purchasers shall each bear
their own legal and other expenses with respect to the Agreements and the
Offering.
8.7 COUNTERPARTS. This Agreement may be executed in two or more
identical counterparts, each of which shall be deemed an original and all of
which, together, shall constitute one and the same agreement. Any signature
that is delivered by facsimile transmission shall be valid and binding, with
the same force and effect as if an original, manually signed counterpart.
16
8.8. SEVERABILITY. In the event that any provision of this
Agreement is unenforceable, the remaining provisions shall continue in full
force and effect.
8.9. SECTION HEADINGS, ETC. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement. As used herein, any gender shall include all other
genders, and the singular shall include the plural and vice versa. The terms
"include," "including" and similar terms shall mean include without limitation,
whether by enumeration or otherwise.
8.10. NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for
the benefit of the parties hereto, the Placement Agent (and its directors,
officers, agents, Affiliates and controlling persons), and their respective
permitted successors and assigns, and no other person is intended to or shall
have any rights hereunder whether as a third party beneficiary or otherwise.
8.11. INDEPENDENT NATURE OF PURCHASERS' OBLIGATIONS AND RIGHTS. The
obligations of each Purchaser hereunder are several and not joint with the
obligations of the other Purchasers hereunder, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser hereunder. Nothing contained herein or in any other agreement or
document delivered at the Closing, and no action taken by any Purchaser
pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of Person, or
create a presumption that the Purchasers are in any way acting in concert with
respect to such obligations or the transactions contemplated by this Agreement.
Each Purchaser shall be entitled to protect and enforce its rights, including,
without limitation, the rights arising out of the Agreements, and it shall not
be necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
8.12. FURTHER ASSURANCES. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as the other parties may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
8.13. CONFIDENTIALITY. All material, non-public information
disclosed by the Company to the Purchasers pursuant to this Agreement or
otherwise shall be held strictly confidential and used by the Purchasers solely
for evaluating purchases of Shares in this Offering, provided this obligation
shall not apply to any information that is generally available to the public or
becomes available to the public without any disclosure by a Purchaser or the
Placement Agent.
8.14. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the
Registration Rights Agreement constitute the entire understanding and agreement
between the Purchasers and the Company with regard to the subject matter.
Except as expressly provided herein, this Agreement, any of the other
Agreements or any term hereof may be amended, modified, waived or discharged
only by a written instrument signed by the party waiving any term, condition,
or right or remedy that benefits it hereunder.
17
IN WITNESS WHEREOF, each Purchaser and the Company, intending to be
legally bound regardless of the aggregate number of Shares actually sold to all
Purchasers pursuant to this Offering, have caused this Agreement to be executed
by their respective officers or officials thereunto duly authorized as of the
date first above written.
BLUE RHINO CORPORATION
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Name: Xxxxx X. Xxxx
-----------------------------------
Title: President and CEO
-----------------------------------
PURCHASERS:
LEGUNITAS PARTNERS, LP
By: /s/ Xxx X. Xxxxxx
------------------------------------------
Name: Xxx X. Xxxxxx
-----------------------------------
Title: GMCM Managing Member
-----------------------------------
XXXXXX FAMILY FOUNDATION
By: /s/ Xxx X. Xxxxxx
------------------------------------------
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
----------------------------------------------
18
/s/ Xxxxx X. Xxxxxx
----------------------------------------------
Xxxxx X. Xxxxxx
----------------------------------------------
XXX X. XXXXXX TTEE XXXXXXX X. XXXXXX
By: /s/ Xxx X. Xxxxxx
------------------------------------------
Name: Xxx X. Xxxxxx
-----------------------------------
Title: Trustee
-----------------------------------
XXX X. XXXXXX TTEE 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
-----------------------------------
19
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 General Partner
-----------------------------------
XXXXXX FUND II, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Managing Member of General Partner
-----------------------------------
XXXXXX FUND OFFSHORE, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Managing Member of Investment
-----------------------------------
Manager
-----------------------------------
XXXXXX PARTNERS, L.P.
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxx
-----------------------------------
Title: General Partner
-----------------------------------
20
XXXXXX-XXXXXXX L.P.
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
-----------------------------------
21
Stock Purchase Agreement
SCHEDULE 1
SCHEDULE OF PURCHASERS
Name and Address No. of Shares Purchase Price
---------------- ------------- --------------
22
Stock Purchase Agreement
SCHEDULE 2
STOCK CERTIFICATE REGISTRATION INFORMATION
Pursuant to the Stock Purchase Agreement, please provide us with the
following information:
1. The exact name that
your Shares are to be registered in (this
is the name that will appear on your
stock certificate(s)). You may use a
nominee name if appropriate:
--------------------------------
2. The relationship between
the Purchaser of the Shares and the
Registered Holder listed in
response to item 1 above:
--------------------------------
3. The mailing address of
the Registered Holder listed in
response to item 1 above:
--------------------------------
--------------------------------
--------------------------------
--------------------------------
-------------------------------------------------------------------------------
SUBSTITUTE FORM W-9
Under the penalties of perjury, I certify that: (1) the Social Security Number
or Taxpayer Identification Number given above is correct; and (2) I am not
subject to backup withholding either because I have not been notified that I am
subject to backup withholding as a result of a failure to report all interest
or dividends, or because the Internal Revenue Service has notified me that I am
no longer subject to backup withholding. Instructions: You must cross out #2
above if you have been notified by the Internal Revenue Service that you are
subject to backup withholding because of under reporting interest or dividends
on your tax return and if you have not received a notice from the Internal
Revenue Service advising you that backup withholding due to notified payee
under reporting has terminated.
SIGNATURE* DATE: , 2002
------------------------------ --------------------------
-------------------------------------------------------------------------------
23
Stock Purchase Agreement
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
24
