As filed with the Securities and Exchange Commission on January 4, 2000
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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BLUE RHINO CORPORATION
(Exact name of Registrant as specified in its charter)
______________
Delaware 56-1870472
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
______________
104 Cambridge Plaza Drive
Winston-Salem, North Carolina 27104
Telephone (336) 659-6900
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
______________
BLUE RHINO CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
______________
Billy D. Prim
Chairman and Chief Executive Officer
104 Cambridge Plaza Drive
Winston-Salem, North Carolina 27104
Telephone (336) 659-6900
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Amount to Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Aggregate Offering Aggregate Offering Registration
be Registered Registered Price Per Share(1) Price (1) Fee
- -----------------------------------------------------------------------------------------------
Common Stock, par 300,000 $9.25 $2,775,000 $732.60
value $.001 per share Shares
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(1) Estimated solely for the purpose of calculating the registration fee based
upon the average of the high and low prices of the Common Stock on the
Nasdaq National Market on December 31, 1999 in accordance with Rule
457(c) and Rule 457(h) under the Securities Act of 1933, as amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the Blue Rhino Corporation Employee Stock Purchase Plan of
Blue Rhino Corporation, a Delaware corporation (the "Registrant") pursuant to
Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Exchange Act of 1934, as amended (the
"Exchange Act"), and in accordance therewith files reports, proxy statements and
other information with the Securities and Exchange Commission (the
"Commission"). The following documents, which are on file with the Commission,
are incorporated in this Registration Statement by reference:
(a) The Registrant's annual report on Form 10-K for the fiscal year ended
July 31, 1999.
(b) The Registrant's quarterly report on Form 10-Q for the fiscal quarter
ended October 31, 1999.
(c) The description of the Registrant's common stock under the caption
"Description of Capital Stock" contained in the Registrant's prospectus dated
November 29, 1999, filed with the Commission on November 29, 1999 pursuant to
Rule 424(b)(1) under the Securities Act of 1933, as amended (the "Securities
Act") and deemed to be a part of the Registrant's registration statement on Form
S-3 (file number 333-90897).
(d) All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-
effective amendment which indicates that all shares offered hereby have been
sold or which de-registers all shares then remaining unsold, shall be deemed to
be incorporated in this registration statement by reference and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
John Muehlstein, one of the Registrant's directors, and Peer Pedersen, a
stockholder of the Registrant, are principals of the firm of Pedersen & Houpt, a
professional corporation, the Registrant's legal counsel.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") authorizes
indemnification of directors, officers, employees and agents of the Registrant;
allows the advancement of costs of defending against litigation; and permits
companies incorporated in Delaware to purchase insurance on behalf of directors,
officers, employees and agents against liabilities whether or not in the
circumstances such companies would have the power to indemnify against such
liabilities under the provisions of the statute. The Registrant's Second Amended
and Restated Certificate of
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Incorporation, as amended on December 21, 1999 (the "Charter") provides that the
Registrant will indemnify its directors and officers to the fullest extent
permitted by law.
Under the provisions of the Registrant's Charter, any director or officer
who, in his or her capacity as such, is made or threatened to be made a party to
any suit or proceeding shall be indemnified if the Board of Directors determines
such director or officer acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Registrant or, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The Registrant will
not however indemnify any director or officer where such director or officer:
(a) breaches his or her duty of loyalty to the Registrant or its stockholders;
(b) fails to act in good faith or engages in intentional misconduct or knowing
violation of law; (c) authorizes payment of an unlawful dividend or stock
repurchase or redemption; or (d) obtains an improper personal benefit. While
liability for monetary damages has been eliminated, equitable remedies such as
injunctive relief or rescission remain available. In addition, a director is not
relieved of his or her responsibilities under any other law, including the
federal securities laws.
Indemnification under the Registrant's Charter and Amended and Restated By-
laws ("By-laws") includes payment by the Registrant of expenses in defending an
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by the indemnified party to
repay such advance if it is ultimately determined that such person is not
entitled to indemnification under the Charter, which undertaking may be accepted
without reference to the financial ability of such person that makes such
repayments. The Registrant is not responsible for the indemnification of any
person seeking indemnification in connection with a proceeding initiated by such
person unless the initiation was approved by the Board of Directors of the
Registrant. The Charter and the DGCL further provide that such indemnification
is not exclusive of any other rights to which such individuals may be entitled
under the Charter, the Bylaws, any agreement, any vote of stockholders or
disinterested directors, or otherwise. The Registrant carries directors and
officers insurance covering its executive officers and directors.
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act of 1933, as amended (the "Securities Act"), may be permitted
to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, the Registrant has been advised that in the opinion of the
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. Undertakings.
1. The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Winston-Salem, North Carolina, on January 3, 2000.
BLUE RHINO CORPORATION
By:/s/Billy D Prim
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Billy D. Prim
Chairman and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitute and appoint Billy D. Prim and Mark Castaneda as his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, to act, without the other, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments (including post-
effective amendments) to this Registration Statement on Form S-8, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on January 3, 2000.
Signature Title
--------- -----
/s/Billy D. Prim President and Chairman of the Board
- -------------------------- (Principal Executive Officer)
Billy D. Prim
/s/Mark Castaneda Secretary and Chief Financial Officer
- -------------------------- (Principal Financial and Accounting Officer)
Mark Castaneda
/s/Andrew J. Filipowski Vice Chairman of the Board
- --------------------------
Andrew J. Filipowski
/s/Craig J. Duchossois Director
- --------------------------
Craig J. Duchossois
/s/Steven D. Devick Director
- --------------------------
Steven D. Devick
/s/Richard A. Brenner Director
- --------------------------
Richard A. Brenner
/s/John H. Muehlstein Director
- --------------------------
John H. Muehlstein
/s/ Robert J. Lunn Director
- --------------------------
Robert J. Lunn
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Exhibits
Exhibit No. Description of Exhibit
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4.1 Form of Certificate of Common Stock of the Registrant
incorporated by reference to Exhibit 4.1 of the Registrant's
Registration Statement on Form S-1 dated May 18, 1998.
4.2 Second Amended and Restated Certificate of Incorporation of the
Registrant incorporated herein by reference to Exhibit 3.1 to the
Company's report on Form 10-Q dated July 2, 1998.
4.3 Amended and Restated Bylaws of the Registrant incorporated herein
by reference to Exhibit 3.2 to the Registration Statement on Form
S-1 (File No. 333-47669) of the Registrant as declared effective
by the Commission on May 18, 1998.
4.4 Amended and Restated Registration Rights Agreement, dated as of
March 1, 1997, among the Registrant, Forsythe/Lunn Technology
Partners, L.L.C., Platinum Propane Holding, L.L.C., the
Purchasers of Units pursuant to the Unit Purchase Agreement dated
October 11, 1995 and the Purchasers of the Registrant's Series A
Convertible Participating Preferred Stock incorporated herein by
reference to Exhibit 10.15 to the Registration Statement on Form
S-1 (File No. 333-47669) of the Registrant as declared effective
by the Commission on May 18, 1998.
4.5 Certificate of Amendment to the Second Amended and Restated
Certificate of Incorporation of the Registrant dated December 21,
1999.
4.6 Registration Rights Agreement among the Registrant and the
purchasers of Common Stock and Warrants dated September 7, 1999
incorporated by reference to Exhibit 4.1 to the Registrant's
Current Report on Form 8-K dated September 23, 1999.
4.7 Registration Rights Agreement among the Registrant and the Buyers
of its Convertible Notes dated September 22, 1999 incorporated by
reference to Exhibit 4.2 to the Registrant's Current Report on
Form 8-K dated September 23, 1999.
4.8 Amendment to Amended and Restated Registration Rights Agreement
among the Registrant and certain holders of its common stock
dated September 7, 1999 incorporated by reference to Exhibit 4.4
to the Registrant's Current Report on Form 8-K dated September
23, 1999.
4.9 Form of Warrant to Purchase Common Stock of the Registrant issued
to purchasers of the Registrant's Common Stock in its private
offering dated September 7, 1999 incorporated by reference to
Exhibit 4.4 to the Registrant's Current Report on Form 8-K dated
September 23, 1999.
4.10 Form of Warrant to Purchase Common Stock of the Registrant issued
to purchasers of the Registrant's Convertible Notes incorporated
by reference to Exhibit 4.5 to the Registrant's Current Report on
Form 8-K dated September 23, 1999.
4.11 Form of Warrant issued to Michael A. Waters dated September 17,
1999 incorporated by reference to Exhibit 4.6 to the Registrant's
Current Report on Form 8-K dated September 23, 1999.
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5.1 Legal Opinion of Pedersen & Houpt, a Professional Corporation
23.1 Consent of Pedersen & Houpt, a Professional Corporation
(included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
23.3 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included on signature page)
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