Exhibit 99.1
FIRST AMENDMENT
to the
AGREEMENT AND PLAN OF MERGER
This First Amendment to the Agreement and Plan of Merger (the "Amendment")
is made and entered into as of the 16th day of March, 2004, by and among FCI
Trading Corp., a Delaware corporation ("Parent"), Diesel Acquisition LLC, a
Delaware limited liability company ("Merger Sub"), Ferrell Companies, Inc., a
Kansas corporation (the "Ultimate Parent"), and Blue Rhino Corporation, a
Delaware corporation (the "Company").
WHEREAS, the parties hereto previously entered into an Agreement and Plan
of Merger dated as of February 8, 2004 (the "Agreement");
WHEREAS, the Securities and Exchange Commission has delayed the effective
date of required compliance with Section 404 of the Sarbanes-Oxley Act of 2002;
WHEREAS, the parties hereto desire to clarify the vesting procedures for
the outstanding but unvested 1998 Options and Distributor Options; and
WHEREAS, the Board of Directors of the Company, the Parent (on behalf of
itself and as sole member of the Merger Sub) and the Ultimate Parent have
previously approved and deemed it advisable and in the best interests of their
respective equityholders to permit their respective officers to make such
amendments to the Agreement as such officers, or any one of them, may approve,
with such approval to be conclusively evidenced by the signature of any such
officer thereon.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, mutual covenants and agreements contained herein
and in the Agreement and intending to be legally bound hereby, the Ferrellgas
Parties and the Company hereby agree as follows:
1. Capitalized Terms. Capitalized terms used herein and not otherwise
defined shall have the meanings given such terms in the Agreement.
2. 1998 Stock Incentive Plan. The third sentence of Section 2.1(d) of the
Agreement is hereby replaced in its entirety with the following:
"The Board of Directors of the Company may, at its option, approve the
pro rata vesting of all outstanding options under the 1998 Plan
through the day immediately prior to the Closing Date (such date
determined by the Board of Directors of the Company, the "Vesting
Determination Date"), which proration shall mean vesting each 1998
Option that would otherwise not be vested under the terms of the
applicable option agreement as of the Vesting Determination Date in
the percentage determined by dividing (i) the number of days elapsed
from the date of initial grant of the 1998 Option through the Vesting
Determination Date, by (ii) the number of days from the date of
initial grant of such 1998 Option through the latest date on which all
of such 1998 Option would have fully vested had all conditions
therefor been met. To illustrate this calculation by way of example
but not of limitation, see Section 3.3(d) and Schedule 3.3(e)(i) for a
calculation of this pro rata vesting procedure based on an assumed
Vesting Determination Date of May 1, 2004."
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3. Distributor Plan. The third sentence of Section 2.1(e) of the Agreement
is hereby replaced in its entirety with the following:
"The Board of Directors of the Company may, at its option, approve the
pro rata vesting of all outstanding options under the Distributor Plan
through the Vesting Determination Date, which proration shall mean
vesting each Distributor Option that would otherwise not be vested
under the terms of the applicable option agreement as of the Vesting
Determination Date in the percentage determined by dividing (i) the
number of days elapsed from the date of initial grant of the
Distributor Option through the Vesting Determination Date, by (ii) the
number of days from the date of initial grant of such Distributor
Option through the latest date on which all of such Distributor Option
would have fully vested had all conditions therefor been met. To
illustrate this calculation by way of example but not of limitation,
see Section 3.3(d) and Schedule 3.3(e)(i) for a calculation of this
pro rata vesting procedure based on an assumed Vesting Determination
Date of May 1, 2004."
4. Internal Controls. Section 5.15 of the Agreement and the provisos at the
end of Sections 7.1(b) and 7.1(e) of the Agreement are hereby deleted in their
entirety.
5. Miscellaneous. Sections 8.2 through 8.8 of the Agreement shall hereby
apply to this Amendment, insofar as such sections cover the Agreement, and shall
hereby be incorporated herein with the same force and effect as if such Sections
were reprinted in their entirety as part of this Amendment.
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Signature page follows.]
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EXECUTED as of the date first set forth above.
BLUE RHINO CORPORATION
By: /s/ Billy D. Prim
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Name: Billy D. Prim
Title: Chairman and Chief Executive Officer
FCI TRADING CORP.
By: /s/ Kenneth A. Heinz
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Name: Kenneth A. Heinz
Title: Senior Vice President, Corporate
Development
DIESEL ACQUISITION LLC
By: FCI TRADING CORP., its sole member
By: /s/ Kenneth A. Heinz
---------------------------------------------
Name: Kenneth A. Heinz
Title: Senior Vice President, Corporate
Development
FERRELL COMPANIES, INC.
By: /s/ Kenneth A. Heinz
---------------------------------------------
Name: Kenneth A. Heinz
Title: Senior Vice President, Corporate
Development