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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 25, 2000
REGISTRATION NO. 333 - _____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------
BLUE RHINO CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 56-1870472
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
104 CAMBRIDGE PLAZA DRIVE
WINSTON-SALEM, NORTH CAROLINA 27104
(336) 659-6900
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
BILLY D. PRIM
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
BLUE RHINO CORPORATION
104 CAMBRIDGE PLAZA DRIVE
WINSTON-SALEM, NORTH CAROLINA 27104
(336) 659-6900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
JEFFREY C. HOWLAND, ESQ. SUSAN M. HERMANN, ESQ.
WOMBLE CARLYLE SANDRIDGE & RICE, PLLC PEDERSEN & HOUPT, P.C.
BB&T FINANCIAL CENTER 161 NORTH CLARK STREET, SUITE 3100
WINSTON-SALEM, NC 27101 CHICAGO, ILLINOIS 60601
(336) 721-3516 (312) 641-6888
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At such time or
times after the effective date of this Registration Statement as the selling
stockholders shall determine.
If any of the securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration number of the earlier effective registration
statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT OFFERING AGGREGATE
SECURITIES TO BE REGISTERED TO BE REGISTERED PRICE PER UNIT (1) OFFERING PRICE (1) AMOUNT OF REGISTRATION FEE
- --------------------------- ---------------- ------------------ ------------------ --------------------------
Common Stock .............. 562,285 shares $3.6875 $2,073,426 $547.38
(1) Estimated solely for purposes of calculating the registration fee, based on
the average of the high and low prices for the Registrant's Common Stock as
reported on the Nasdaq National Market on September 21, 2000 in accordance with
Rule 457 under the Securities Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(a),
MAY DETERMINE.
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562,285 Shares
[BLUE RHINO LOGO OMITTED]
Common Stock
This prospectus is part of a registration statement that covers 562,285
shares of our common stock. These shares may be offered and sold from time to
time by certain of our stockholders. We will not receive any of the proceeds
from the sale of the common shares. We will bear the costs relating to the
registration of the common shares, which we estimate to be $36,000.
The Common Stock is traded on the Nasdaq National Market under the symbol
"RINO." On September 22, 2000, the last reported sale price for the Common Stock
on the Nasdaq National Market was $3.8125 per share.
INVESTING IN THE COMMON STOCK INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 5.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
Prospectus dated September 25, 2000
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You should rely only on the information contained in this prospectus. We
have not authorized any other person to provide you with different information.
If anyone provides you with different or inconsistent information, you should
not rely on it. We are not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus is accurate as of the date on the
front cover of this prospectus only. Our business, financial condition, results
of operations and prospects may have changed since that date.
As used in this prospectus, the terms "we," "us," "Blue Rhino" and "the
Company" refer to Blue Rhino Corporation and its subsidiaries, CPD Associates,
Inc., Rhino Services, L.L.C., USA Leasing, L.L.C. and Uniflame Corporation,
except where it is made clear that such term means only the parent company. The
Blue Rhino logo, including the name, the names RhinoTUFF(R), Tri-Safe(R),
Bison(R), Uniflame(R), UniGrill(R), DuraClay(R), GardenArt(R), Endless
Summer(TM), Endless Summer Comfort(TM), America's Choice For Grill Gas(TM),
Enjoy Outdoor Living - Longer(TM), Grill Gas & Design(TM) and OEM - Direct(TM)
are our registered and pending trademarks. This prospectus may also include
trademarks of other companies. Our principal offices are located at 104
Cambridge Plaza Drive, Winston-Salem, North Carolina 27104 and our telephone
number is (336) 659-6900.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and periodic reports, proxy statements and other
information with the United States Securities and Exchange Commission (the
"SEC"). You may inspect these documents without charge at the principal office
of the SEC located at 450 Fifth Street, N.W., Washington, D.C. 20549, the New
York Regional Office located at 7 World Trade Center, Suite 1300, New York, New
York 10048, and the Chicago Regional Office located at 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661, and you may obtain copies of these
documents from the SEC's Public Reference Room at its principal office.
Information regarding the operation of the Public Reference Room may be obtained
by calling 1-800-SEC-0330. The SEC maintains a web site that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the SEC. The address of the SEC's web site is
http://www.sec.gov. You may also review information about our company at the
offices of Nasdaq, located at 1735 K Street, N.W., Washington, D.C. 20006.
We have filed a registration statement on Form S-3 with the SEC relating to
the offering of common stock pursuant to this prospectus. The registration
statement contains information not found in this prospectus. For further
information, you should refer to the registration statement which you can
inspect and copy in the manner and at the sources described above. Any
statements we make in this prospectus or that we incorporate by reference
concerning the provisions of any document filed as an exhibit to the
registration statement or otherwise filed with the SEC are not necessarily
complete and, in each instance, reference is made to the copy of such document
so filed. Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents that we have previously filed with the SEC or
documents that we will file with the SEC in the future. The information
incorporated by reference is considered to be part of this prospectus, and later
information that we file with the SEC will automatically update and supersede
this information. We incorporate by reference the documents listed below into
this prospectus, and any future filings made by us with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
until the termination of this offering. The documents we incorporate by
reference are:
o Our Annual Report on Form 10-K for the fiscal year ended July 31,
1999;
o Our Quarterly Reports on Form 10-Q for the fiscal quarters ended
October 31, 1999 (as amended on Form 10-Q/A filed with the SEC on
December 16, 1999), January 31, 2000 and April 30, 2000 (as amended on
Form 10-Q/A filed with the SEC on June 15, 2000);
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o Our Current Reports on Form 8-K as filed with the SEC on August 16,
1999, September 23, 1999, April 18, 2000 (as amended on Form 8-K/A
filed with the SEC on June 14, 2000) and September 8, 2000; and
o The description of our common stock contained in our registration
statement on Form 8-A under the Exchange Act as filed with the SEC on
May 19, 1998.
You may request a copy of these filings, at no cost to you, by writing or
telephoning us at the following address and telephone number: Blue Rhino
Corporation, 104 Cambridge Plaza Drive, Winston-Salem, North Carolina 27104;
telephone number (336) 659-6900.
FORWARD-LOOKING STATEMENTS
This prospectus, particularly the section entitled "Risk Factors," contains
forward-looking statements. These statements relate to future events or our
future financial performance and involve known and unknown risks, uncertainties,
and other factors that may cause our actual results, levels of activity,
performance or achievements to be materially different from any future results,
levels of activity, performance or achievements expressed or implied by these
forward-looking statements. These risks and other factors include, among other
things, those listed under "Risk Factors" and elsewhere in this prospectus. In
some cases, you can identify forward-looking statements by terminology such as
"may," "will," "should," "expects," "intends," "plans," "anticipates,"
"believes," "estimates," "predicts," "potential," "continue," or the negative of
these terms or other comparable terminology. These statements are only
predictions. Actual events or results may differ materially. In evaluating these
statements, you should specifically consider various factors, including the
risks outlined under "Risk Factors." These factors may cause our actual results
to differ materially from any forward-looking statement. Although we believe
that the expectations reflected in the forward-looking statements are
reasonable, we cannot guarantee future results, levels of activity, performance
or achievements. We are under no duty to update any of the forward-looking
statements after the date of this prospectus.
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THE COMPANY
We are a leading national provider of branded products and services to
retailers including gas grill cylinder exchange, with Blue Rhino cylinder
displays at more than 25,000 retail locations in 46 states and Puerto Rico.
Cylinder exchange provides consumers with a convenient means to exchange empty
grill cylinders for clean, safe, precision-filled cylinders. We offer our
cylinder exchange at many major home center/hardware, mass merchant, grocery and
convenience stores including Home Depot, Lowe's, Wal*Mart, Kroger and Kwik Shop.
In addition, we offer an array of products including barbecue grills, patio
heaters, fireplace accessories and garden art that are sold to home centers,
mass merchants and hearth stores throughout the United States.
We partner with retailers and independent distributors to provide consumers
with a nationally-branded alternative to traditional grill cylinder refill. We
dedicate our efforts and capital to brand development, value-added marketing,
customer service, cylinders, displays, account growth, distributor network
development and management information services. Our 49 independent distributors
invest in the vehicles, and the refilling and refurbishing equipment necessary
to operate cylinder exchange businesses. To facilitate improved service by our
distributors in the Southeastern United States, we recently invested in an
automated propane bottling and cylinder refurbishing plant in North Carolina. We
believe that our distributor network affords us the opportunity to service
approximately 90% of the cylinder exchange markets in the United States.
RECENT DEVELOPMENTS
In September, 2000, we completed the sale of approximately $10.3 million in
shares of our Series A Convertible Preferred Stock to institutional investors
and certain individual investors at a price of $6.00 per share. We intend to use
the net proceeds from the financing to pay down existing debt and for
acquisitions and general working capital.
On August 7, 2000, we announced that we had purchased an option to acquire
a controlling interest in Quickship, Inc., a privately held, ship-for-profit
company based in Lenexa, Kansas. Our option is exercisable for 60 days. Subject
to completion of due diligence and other customary closing conditions, we expect
to complete the acquisition by September 30, 2000.
Quickship is an established shipping-solution company with installations at
over 200 retail locations in 16 states and annual sales of approximately $1
million. Quickship provides retailers with a new revenue source through a
convenient, full-service, in-store postal and parcel shipping depot, which
allows consumers to drop off their packages and ship them via major carriers for
a fee. We believe the Quickship acquisition will give us an additional retail
service to leverage our existing core competencies of sales, systems and service
to many of the largest retailers in the United States.
On July 12, 2000, we announced that we had increased and amended our
existing bank facility. The bank facility was increased to an aggregate
principal amount of $55 million from $30 million and a portion was used to
redeem our outstanding $7 million of convertible notes.
The amended bank facility creates three separate facilities - a $38 million
revolver for general corporate purposes; a $10 million seasonal overline for
general corporate purposes available from July through November; and a $7
million term facility. The revolver and overline facilities expire in November
2001, while the term facility requires quarterly $1 million principal payments
beginning October 2000 and continuing through July 2002. In conjunction with the
amended bank facility, we also entered into an interest rate hedge agreement for
$10 million, effectively fixing a portion of our interest rate exposure through
2003.
The $7 million of convertible notes, which were issued in September 1999,
were redeemed at par, with proceeds from the term facility, plus interest at
five percent. The redemption constitutes early extinguishment of the debt and
will result in a non-cash extraordinary charge of approximately $486,000, due to
an unamortized discount and other debt issuance costs.
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COMPANY BACKGROUND AND CONTACT INFORMATION
We were incorporated in North Carolina on March 24, 1994, and
reincorporated in Delaware on December 16, 1994. We have four wholly owned
subsidiaries, Rhino Services, L.L.C., a Delaware limited liability company, CPD
Associates, Inc., a North Carolina corporation; USA Leasing, L.L.C., a Delaware
limited liability company; and Uniflame Corporation, a Delaware corporation.
Rhino Services offers centralized purchasing services to our distributors; CPD
Associates holds our intangible assets; USA Leasing offers cylinder leasing
service to our distributors; and Uniflame sells various products including patio
heaters, barbecue grills, garden art and fireplace accessories. In May 1998, we
completed our initial public offering of 3,105,000 shares (including shares
issued upon exercise of the over-allotment option) at an offering price of
$13.00 per share.
Our principal executive offices are at 104 Cambridge Plaza Drive,
Winston-Salem, North Carolina 27104, and our telephone number is (336) 659-6900.
THE OFFERING
Common stock offered ................................ 562,285 shares
Offering price....................................... All or part of the shares offered hereby may be
sold from time to time in amounts and on terms to
be determined by the selling stockholders at the
time of the sale
Risk factors......................................... See "Risk Factors" for a discussion of factors you
should carefully consider before deciding to invest
in shares of our common stock.
Nasdaq symbol........................................ RINO
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RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE RISKS DESCRIBED BELOW BEFORE MAKING AN
INVESTMENT DECISION. THE RISKS AND UNCERTAINTIES DESCRIBED BELOW ARE NOT THE
ONLY ONES WE FACE. ADDITIONAL RISKS AND UNCERTAINTIES NOT PRESENTLY KNOWN TO US
OR THAT WE CURRENTLY DEEM IMMATERIAL MAY ALSO SIGNIFICANTLY IMPAIR OUR BUSINESS,
FINANCIAL CONDITION AND RESULTS OF OPERATIONS.
IF ANY OF THE FOLLOWING RISKS ACTUALLY OCCURS, OUR BUSINESS, FINANCIAL
CONDITION AND RESULTS OF FUTURE OPERATIONS COULD BE MATERIALLY AND ADVERSELY
AFFECTED. IN SUCH CASE, THE TRADING PRICE OF OUR COMMON STOCK COULD DECLINE, AND
YOU COULD LOSE ALL OR PART OF YOUR INVESTMENT.
THIS PROSPECTUS ALSO CONTAINS FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS
AND UNCERTAINTIES. OUR ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE
ANTICIPATED IN THESE FORWARD-LOOKING STATEMENTS AS A RESULT OF CERTAIN FACTORS,
INCLUDING THE RISKS FACED BY US DESCRIBED BELOW.
RISKS RELATING TO OUR BUSINESS
IF WE ARE UNABLE TO SUSTAIN OUR CURRENT GROWTH RATE, OUR FINANCIAL CONDITION MAY
SUFFER.
We are a young company that has experienced a very high growth rate. In
order to continue to grow, we must be able to:
o Demonstrate the benefits of cylinder exchange to consumers and
retailers;
o Maintain relationships with distributors who are able to expand our
business and adhere to our quality and service standards;
o Find and integrate productive new retail locations;
o Identify, develop and market new products and services related to
propane use and backyard living;
o Secure capital to fund growth; and
o Refine and maintain a corporate infrastructure sufficient to support
growth.
Even if we successfully implement our growth strategy, we may not be able to
sustain our recent growth rates.
OUR REVENUES ARE CONCENTRATED WITH A LIMITED NUMBER OF RETAILERS UNDER
NONEXCLUSIVE ARRANGEMENTS THAT THEY MAY TERMINATE AT WILL. IF ONE OR MORE OF
THESE RETAILERS WERE TO MATERIALLY REDUCE OR TERMINATE ITS BUSINESS WITH US, OUR
BUSINESS MAY SUFFER.
We depend upon our relationships with a limited number of major retailers
for a significant portion of our net sales. Home Depot represented approximately
23% of our fiscal 1999 net sales and approximately 24% of our net sales for the
nine months ended April 30, 2000. Lowe's represented approximately 13% of our
fiscal 1999 net sales and approximately 12% of our net sales for the nine months
ended April 30, 2000. Wal*Mart represented approximately 13% of our fiscal 1999
net sales and approximately 11% of our net sales for the nine months ended April
30, 2000. If one or more of these retailers were to materially reduce or
terminate its business with us for any reason, our business may suffer.
None of our significant retail accounts are contractually bound to offer
Blue Rhino cylinder exchange. Therefore, retailers can discontinue Blue Rhino
cylinder exchange at any time and offer a competitor's cylinder exchange or no
cylinder exchange program at all. Continued relations with a retailer depend
upon
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various factors, including customer service, consumer demand, competition and
cost. In addition, certain of our retailers have multiple vendor policies and
may seek to offer a competitor's cylinder exchange program at new or existing
locations. If any significant retailer materially reduces, terminates or is
unwilling to expand its relationship with us, our business may suffer.
PROPANE SUPPLIES AND COSTS ARE UNPREDICTABLE AND PROPANE PRICE INCREASES COULD
CONTINUE TO IMPACT OUR PROFIT MARGINS.
Our distributors purchase propane from natural gas providers and oil
refineries that produce propane as a by-product of the refining process. The R-4
Technical Center, our jointly-owned automated propane bottling and cylinder
refurbishing plant in North Carolina, also purchases propane. The supply and
price of propane fluctuates depending upon underlying natural gas and oil prices
and the ability of suppliers to deliver propane. A substantial increase in
propane prices could lead to decreased profit margins for us or our distributors
and could impact our distributors' ability or desire to service our retail
accounts.
We experienced negative consequences of this type during the fourth quarter
of fiscal 2000. Propane prices were high by historical measures, and this
adversely affected our distributors' cost structures. We elected to increase
payments to our distributors to ensure their continued strength until our retail
prices could be adjusted to reflect the higher costs. This unexpected expense
had a significant impact on our fourth quarter and fiscal 2000 earnings.
IF OUR DISTRIBUTORS AND MANAGEMENT ARE UNABLE TO MANAGE GROWTH SUCCESSFULLY, OUR
BUSINESS MAY SUFFER.
The number of retail locations offering Blue Rhino cylinder exchange and
our corresponding sales have grown significantly over the past several years
along with the creation of our independent distributor network. For us to
continue to grow, our distributors must be able to adequately service an
increasing number of retail accounts. Certain distributors have experienced
service problems in the past, particularly during peak demand periods such as
holiday weekends. Our retailers impose demanding service requirements on us, and
our retail relationships will be jeopardized if our distributors fail to meet
these requirements. Our executive officers, who have only limited prior
experience managing a public company, must implement and improve operational and
financial systems and train and manage our employee base in order to manage our
expanding retailer and distributor relationships. If we fail to manage our
growth effectively, our business may suffer.
OUR RETAILER RELATIONSHIPS DEPEND HEAVILY ON OUR DISTRIBUTORS' PERFORMANCE.
We rely exclusively on independent distributors to deliver our products to
retailers. Our success will depend on our ability to maintain existing
distributor relationships and on the distributors' ability to set up and
adequately service an expanding base of retail accounts. We exercise only
limited influence over the resources that our independent distributors devote to
cylinder exchange. We could suffer a loss of consumer or retailer goodwill if
our distributors do not adhere to our quality control and service guidelines or
fail to ensure an adequate and timely supply of cylinders at retail locations.
The poor performance of a single distributor to a national retailer could
jeopardize our entire relationship with that retailer and cause our business to
suffer.
SERVICE OF OUR RETAIL LOCATIONS IS CONCENTRATED WITH A LIMITED NUMBER OF
DISTRIBUTORS.
As of April 30, 2000, distributors controlled by two entities serviced
approximately 37% of our retail locations. Sales by these key distributors
resulted in approximately 44% of our net sales for the nine months ended April
30, 2000 and approximately 40% of our net sales for fiscal 1999. The five
distributors owned by Platinum Propane Holding, L.L.C. accounted for
approximately 35% of our net sales for the nine months ended April 30, 2000 and
approximately 31% of our net sales for fiscal 1999. Ceramic Industries, Inc.
accounted for approximately 9% of our net sales for the nine months ended April
30, 2000 and for fiscal 1999. If any of our major distributors were to reduce or
terminate its relationship with us or suffer a disruption in service, our
business may suffer.
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IF WE EXPERIENCE PROBLEMS ASSOCIATED WITH THE R-4 TECHNICAL CENTER, OUR BUSINESS
MAY SUFFER.
In April 2000, operations commenced at our R-4 Technical Center, an
automated propane bottling and cylinder refurbishing plant in North Carolina
that we own jointly with Manchester Tank & Equipment Co. and Platinum Propane,
LLC. Ownership in the joint venture is 50% Manchester, 49% Blue Rhino and 1%
Platinum. We expect that the plant will provide consolidated purchasing and
greater cost-efficiencies and quality control for our distributors serving the
Southeast. While these distributors previously fulfilled their bottling and
refurbishing functions independently, we believe that many of them will now
utilize the plant for these purposes. If we are unable to attract, retain and
manage qualified production personnel for the plant, or if for any reason we are
unable to meet our production goals, achieve our targeted production costs or
satisfy our distributors' needs, the ability of our distributors to service our
retail accounts could be impacted and our business may suffer.
As a result of our ownership interest, we recognize 49% of the R-4
Technical Center's net earnings or losses. For the year ended July 31, 2000, we
expect to recognize approximately $403,000 as our proportionate share of the R-4
Technical Center's net losses. If the R-4 Technical Center is unable to generate
earnings, our business, financial condition and results of operations may
suffer.
In August 2000, 4,700 Blue Rhino propane cylinders filled at the R-4
Technical Center were recalled after the cylinder valves were found to have
missing or damaged internal seals. We instructed our distributors to inventory
the cylinders at their plants and retail locations and to remove any cylinders
with the recalled valves. However, we cannot be sure that all the recalled
valves have been removed from circulation. We have not received any reports of
injuries, but the potential defects could cause propane leaks, which can pose
the risk of fire, explosion and burn injuries, and could lead to one or more
adverse consequences described below under the heading "Risks Related to Our
Industry -- Propane is a volatile product and we face potential product
liability."
WE DEPEND ON MANAGEMENT INFORMATION SYSTEMS TO MANAGE ALL ASPECTS OF OUR
BUSINESS EFFECTIVELY.
We depend on our management information systems (MIS) to process orders,
manage inventory and accounts receivable collections, maintain distributor and
customer information, maintain cost-efficient operations and assist distributors
in delivering products on a timely basis. In addition, our staff of four MIS
professionals relies heavily on the support of Information Management System
Services (IMSS), a division of R. J. Reynolds Tobacco Company. Any disruption in
the operation of our MIS, the loss of employees knowledgeable about such
systems, the termination of our relationship with IMSS or our failure to
continue to effectively modify such systems as our business expands could
negatively affect our business.
IF WE ARE UNABLE TO PROTECT OUR INTELLECTUAL PROPERTY, WE MAY LOSE ASSETS OR
REQUIRE COSTLY LITIGATION TO PROTECT OUR RIGHTS.
We consider our trademarks, particularly the Blue Rhino logo and name, and
the design of our product packaging to be valuable to our business and the
establishment of our national branded cylinder exchange program. We rely on a
combination of copyright and trademark laws and other arrangements to protect
our proprietary rights and could incur substantial expense to enforce our rights
under copyright or trademark laws. The requirement to change any of our
trademarks, service marks or trade name could entail significant expense, result
in the loss of any goodwill associated with that trademark, service mark or
trade name, and impact our ability to apply for copyrights and additional
trademarks in the future.
Our acquisition of certain assets from Bison Valve in September 1999
included two patent applications on an OPD valve. A patent was granted in June
2000 for the original OPD design and an application on a modification to the
original OPD design remains pending. In connection with our April 2000
acquisition of patio heater assets, we have obtained a patent relating to the
devices' heating apparatus. An additional patent application relating to other
patio heater design elements is pending. We cannot be sure that either of the
pending applications will be granted, or that the granted patents or the patents
under application, if granted, will have any commercial or competitive value.
Moreover, while we may apply for additional
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trademarks, patents or copyrights in the future, we cannot be sure that any
trademark, patent or copyright will be issued, that any trademarks, patents or
copyrights will be held valid if subsequently challenged or that others will not
claim rights in or ownership of our trademarks, patents, copyrights or other
proprietary rights.
OUR BUSINESS IS SUBJECT TO SEASONAL AND QUARTERLY FLUCTUATIONS.
Our quarterly operating results fluctuate significantly primarily because
consumers grill most frequently in the spring and summer, especially in colder
regions of the United States. As a result, we earn most of our revenue during
our third and fourth fiscal quarters ending April 30 and July 31. Sustained
periods of poor weather, particularly during the spring and summer, may
negatively impact our total revenues and gross margin. Our timing and rate of
establishing new retail locations and expenses incurred in anticipation of
increased sales also may cause quarterly fluctuations in our results of
operations. Accordingly, the results of operations in any quarter will not
necessarily be indicative of the results that we may achieve for a full fiscal
year or any future quarter.
RISKS RELATED TO OUR INDUSTRY
CYLINDER EXCHANGE IS STILL GAINING ACCEPTANCE, AND OUR GROWTH IS DEPENDENT ON
THAT TREND CONTINUING.
We derive substantially all of our revenues from cylinder exchange, a
relatively new retailing concept for consumers and retailers. According to a
1999 industry study, 75% of the consumers who use propane grills refill or fill
rather than exchange their empty cylinders. Our success will depend in large
part on our ability to convince consumers to switch from traditional refilling
methods to cylinder exchange and to encourage retailers to offer cylinder
exchange.
WE FACE COMPETITION FROM THE GRILL CYLINDER REFILLING INDUSTRY AND FROM OTHER
GRILL CYLINDER EXCHANGE PROVIDERS.
The grill cylinder refilling industry is highly fragmented and competitive.
Competition in our industry is based primarily upon convenience, quality of
product, service, historical relationships, perceived safety and price. Because
75% of the consumers who use propane grills refill rather than exchange their
cylinders, our primary competition comes from the approximately 20,000 bulk
refilling stations owned and operated by propane dealers, as well as certain
rental outlets, recreational vehicle centers and hardware stores.
Major propane providers, such as AmeriGas Propane Partners, L.P., Suburban
Propane Partners, L.P., Ferrellgas Propane Partners, L.P., Heritage Propane
Partners, L.P. and Cornerstone Propane Partners, L.P., could expand their
existing cylinder exchange businesses nationally. These major propane providers
have greater resources than we do and may be able to undertake more extensive
marketing campaigns and adopt more aggressive pricing policies than we can. We
also compete with numerous regional cylinder exchange providers, which typically
have operations in a few states, and with local cylinder exchange providers. If
these competitors expand their cylinder exchange programs or new competitors
enter the market or grow to compete with us on a national scale, our market
share and gross margins could decrease.
PROPANE IS A VOLATILE PRODUCT AND WE FACE POTENTIAL PRODUCT LIABILITY.
Propane is a gas which, if exposed to flame or high pressure, may ignite or
explode, potentially causing significant property damage and bodily harm. In the
past, fires and other incidents have occurred at refurbishing and refilling
facilities operated by us and our distributors that resulted in bodily injuries
and substantial property damage. Because of the volatility of propane, accidents
may occur during the refurbishing, refilling, transport, storage, exchange, use
or disposal of cylinders and other Blue Rhino products. Because the Blue Rhino
name and logo are prominently displayed on all cylinders, cylinder displays and
other Blue Rhino products, such as patio heaters, we could be subjected to
damage claims. In addition, we could be subject to additional product liability
for barbecue grills sold by Uniflame
8
11
Corporation and for the failure of an OPD valve, regardless of whether such
valve was fitted on a Blue Rhino cylinder.
We could also be subject to claims related to manufacturing defects or
workplace accidents at the R-4 Technical Center. If an accident happens, we
could incur substantial expense, receive adverse publicity and suffer a loss of
sales. A cylinder-related accident involving personal injury could result in
product liability actions against us or our distributors and could affect the
willingness of retailers to offer or consumers to use cylinder exchange. Adverse
publicity relating to any such incident could also affect our reputation and the
perceived benefits of cylinder exchange. Furthermore, we cannot be sure that
insurance will provide sufficient coverage in any particular case or that we or
our distributors will be able to continue to obtain insurance coverage at
acceptable levels and cost.
In August 2000, 4,700 Blue Rhino propane cylinders filled at the R-4
Technical Center were recalled after the cylinder valves were found to have
missing or damaged internal seals. We instructed our distributors to inventory
the cylinders at their plants and retail locations and to remove any cylinders
with the recalled valves. However, we cannot be sure that all the recalled
valves have been removed from circulation. We have not received any reports of
injuries, but the potential defects could cause propane leaks, which can pose
the risk of fire, explosion and burn injuries, and could lead to one or more of
the adverse consequences described above.
PROPANE IS A HEAVILY REGULATED PRODUCT.
Federal, state and local authorities regulate the transportation, handling,
storage and sale of propane in order to protect consumers, employees, property
and the environment. The handling of propane in most regions of the United
States is governed by guidelines published by the National Fire Protection
Association in Pamphlets 54 and 58. These guidelines require that all cylinders
produced or recertified after September 30, 1998, and all grill cylinders
refilled after April 1, 2002 must be fitted with an overfill prevention device
valve. Failure of our distributors to comply with these regulations could
subject us to potential governmental action for violation of such regulations,
which could result in fines, penalties and/or injunctions.
VARYING LOCAL PERMITTING PROCESSES AFFECT OUR RETAIL LOCATIONS.
Local ordinances, which vary from jurisdiction to jurisdiction, generally
require retailers to obtain permits to store and sell propane cylinders. These
ordinances influence retailers' acceptance of cylinder exchange, distribution
methods, cylinder packaging and storage. The ability and time required to obtain
permits varies by jurisdiction. Delays in obtaining permits have from time to
time significantly delayed the installation of new retail locations. Some
jurisdictions have refused to issue the necessary permits, which has prevented
some installations. Certain jurisdictions may also impose additional
restrictions on our ability to market and our distributors' ability to transport
cylinders or otherwise maintain our cylinder exchange program. Revisions to
these regulations or violations of current or future regulations by us or our
distributors may cause our business to suffer.
WE DEPEND ON OUR SUPPLIERS.
To adequately service our retail accounts, our distributors need a
sufficient supply of cylinders and valves. There are only two major cylinder
suppliers and only six major valve suppliers in the U.S. market. The
implementation of National Fire Protection Association guidelines requiring the
introduction of valves with overfill prevention devices and growth in propane
grill sales and use could increase demand for cylinders and valves. If the
distributors were unable to obtain sufficient quantities of cylinders or valves,
delays or reductions in cylinder availability could occur, which may cause our
business to suffer.
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12
RISKS RELATING TO THIS OFFERING
MEMBERS OF MANAGEMENT ARE SIGNIFICANT STOCKHOLDERS.
As of September 15, 2000, current executive officers, directors and
entities controlled by them beneficially owned, in the aggregate, approximately
55% of our outstanding common stock. As a result, they can exert considerable
voting control in connection with matters requiring stockholder approval,
including election of directors and approval of significant corporate
transactions, provided that they vote together on such matters, and may have the
effect of delaying or preventing a change in control of Blue Rhino or impeding
or precluding transactions in which stockholders might otherwise receive a
premium for their shares over then current market prices.
FUTURE SALES OF SHARES COULD HURT OUR COMMON STOCK'S MARKET PRICE.
Sales of substantial amounts of common stock in the public market or the
prospect of such sales could adversely affect the market price for our common
stock and our ability to raise equity capital in the future at a time and price
we deem appropriate. As of September 15, 2000, we had outstanding 10,938,368
shares of common stock. Of these shares, the 562,285 shares sold in this
offering, together with 4,712,875 other shares, are freely tradable without
restriction or further registration under the Securities Act of 1933, as
amended, except for any shares acquired by our "affiliates," as that term is
defined in Rule 144 under the Securities Act. We believe that the holders of the
remaining 5,663,208 shares are affiliates and, accordingly, that their shares
may be sold without registration only in compliance with the Securities Act
(including Rule 144). As of July 31, 2000, options to purchase 1,535,307 shares
of common stock were outstanding under our stock option plans, with a weighted
average exercise price of $10.58 per share and a weighted average remaining
contractual life of 8.57 years. Of these, options to purchase 445,909 shares
were exercisable at July 31, 2000, at a weighted average exercise price of
$11.29 per share.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the common shares.
We have paid the costs relating to the registration of these shares, which we
estimate to be $36,000.
SELLING STOCKHOLDERS
The selling stockholders acquired the shares offered hereby in connection
with our acquisition in April 2000 of certain assets from Uniflame, Inc., an
import and design company dealing in barbecue grills, garden art and fireplace
accessories, and International Propane Products, LLC, a wholesale and design
company engaged in the development and distribution of outdoor patio heaters.
The following table sets forth, for each selling stockholder, the amount of
Blue Rhino common stock owned, the number of shares of common stock offered
hereby and the number of shares of common stock to be held and the percentage of
outstanding common stock to be beneficially owned after completion of this
offering (assuming the sale of all shares offered under this prospectus). Other
than as described in the footnotes to the table, none of the selling
stockholders has had any position, office or other relationship material to Blue
Rhino with Blue Rhino or any of its affiliates within the past three years.
PERCENTAGE
SHARES TO BE BENEFICIAL
SHARES SHARES BENEFICIALLY OWNED OWNERSHIP AFTER
BENEFICIALLY OFFERED AFTER COMPLETION COMPLETION OF THIS
NAME OWNED (1) HEREBY OF THIS OFFERING (1) OFFERING (2)
- ---- ------------ ------------ -------------------- ---------------------
Mac R. McQuilkin (3) 335,570 335,570 -- --
James E. Harris 122,046 122,046 -- --
Michael A. Waters (4) 183,572 83,572 100,000 *
Michael Fasel (5) 12,074 9,574 2,500 *
Martin Bossler (6) 4,432 4,432 -- --
Darren Howanietz (7) 2,659 2,659 -- --
Brandon McQuilkin 2,659 2,659 -- --
Paul Friduss 1,773 1,773 -- --
10
13
- --------------
* Less than 1%.
(1) Beneficial ownership is determined in accordance with the rules of the SEC.
In computing the number of shares beneficially owned by a person and the
percentage ownership of that person, shares of common stock subject to
options, warrants or convertible securities held by that person that are
currently convertible or exercisable or convertible or exercisable within
60 days of the date hereof are deemed outstanding. Except as indicated in
the footnotes to this table and as provided pursuant to applicable
community property laws, the stockholders named in the table have sole
voting and investment power with respect to the shares set forth opposite
each stockholder's name.
(2) Based on 10,938,368 shares outstanding as of September 15, 2000.
(3) Mr. McQuilkin has been President and Chief Executive Officer of Uniflame
Corporation since April 2000.
(4) Includes 100,000 shares of common stock issuable upon the exercise of
warrants granted in September 1999.
(5) Mr. Fasel has been Executive Vice President of Uniflame Corporation since
April 2000.
(6) Mr. Bossler has been Executive Vice President-Products of Uniflame
Corporation since April 2000.
(7) Mr. Howanietz has been Vice President and Chief Financial Officer of
Uniflame Corporation since April 2000.
PLAN OF DISTRIBUTION
The selling stockholders (or, subject to applicable law, their pledgees,
donees, distributees, transferees or other successors in interest) may sell
shares from time to time in public transactions, on or off the Nasdaq National
Market, or private transactions, at prevailing market prices or at privately
negotiated prices, including but not limited to, one or any combination of the
following types of transactions:
o ordinary brokers' transactions;
o transactions involving cross or block trades or otherwise on the
Nasdaq National Market;
o purchases by brokers, dealers or underwriters as principal and resale
by such purchasers for their own accounts pursuant to this prospectus;
o "at the market" to or through market makers or into an existing market
for the common stock;
o in other ways not involving market makers or established trading
markets, including direct sales to purchasers or sales effected
through agents;
o through transactions in options, swaps or other derivatives (whether
exchange-listed or otherwise);
o in privately negotiated transactions; or
o to cover short sales.
In effecting sales, brokers or dealers engaged by the selling stockholders
may arrange for other brokers or dealers to participate in the resales. The
selling stockholders may enter into hedging transactions with broker-dealers,
and in connection with those transactions, broker-dealers may engage in short
sales of the shares. The selling stockholders also may sell shares short and
deliver the shares to close out such short
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14
positions. The selling stockholders also may enter into option or other
transactions with broker-dealers that require the delivery to the broker-dealer
of the shares, which the broker-dealer may resell pursuant to this prospectus.
The selling stockholders also may pledge the shares to a broker-dealer or
financial institution, and upon a default, the broker-dealer or financial
institution may effect sales of the pledged shares pursuant to this prospectus.
Brokers, dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling stockholders in amounts to be
negotiated in connection with the sale. The selling stockholders and any
participating brokers or dealers may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales and any such
commission, discount or concession may be deemed to be underwriting
compensation.
Information as to whether underwriters who the selling stockholders may
select, or any other broker-dealer, is acting as principal or agent for the
selling stockholders, the compensation to be received by underwriters that the
selling stockholders may select or by any broker-dealer acting as principal or
agent for the selling stockholders, and the compensation to be paid to other
broker-dealers, in the event the compensation of such other broker-dealers is in
excess of usual and customary commissions, will, to the extent any such
information exists or is required, be set forth in a supplement to this
prospectus. Any dealer or broker participating in any distribution of the shares
may be required to deliver a copy of this prospectus, including a prospectus
supplement, if any, to any person who purchases any of the shares from or
through such dealer or broker.
We have advised the selling stockholders that during such time as they may
be engaged in a distribution of the shares they are required to comply with
Regulation M promulgated under the Exchange Act. With certain exceptions,
Regulation M precludes any selling stockholder, any affiliated purchasers and
any broker-dealer or other person who participates in a distribution from
bidding for or purchasing, or attempting to induce any person to bid for or
purchase any security that is the subject of the distribution until the entire
distribution is complete. Regulation M also prohibits any bids or purchases made
in order to stabilize the price of a security in connection with the
distribution of that security. All of the foregoing may affect the marketability
of the common stock.
Messrs. Mac McQuilkin, Harris, Fasel, Bossler, Friduss, Howanietz and
Brandon McQuilkin have agreed with us that, subject to limited exceptions, they
will not sell or otherwise transfer any of the shares they own that are being
offered by this prospectus before October 1, 2000. There are no other
contractual arrangements between or among any of the selling stockholders and
Blue Rhino with regard to the sale of the shares and no professional underwriter
in its capacity as such will be acting for the selling stockholders.
LEGAL MATTERS
The validity of the common stock being offered hereby has been passed upon
for us by Pedersen & Houpt, a Professional Corporation, Chicago, Illinois, as
special counsel. John H. Muehlstein, one of our directors, is also a principal
of Pedersen & Houpt. We have also been represented in connection with certain
matters relating to the preparation of this prospectus by Womble Carlyle
Sandridge & Rice, PLLC, Winston-Salem, North Carolina.
EXPERTS
The consolidated financial statements of Blue Rhino Corporation
appearing in Blue Rhino Corporation's Form 10-K for the year ended July 31,
1999, have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
The consolidated financial statements incorporated in this registration
statement by reference to the Annual Report on Form 10-K as of July 31, 1999 and
for the two fiscal years in the period ended July 31, 1998 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
accounting and auditing.
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15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the sale of the common stock being registered hereby. All amounts are
estimates except the SEC registration fee.
Amount to Be Paid by
Registrant
--------------------
SEC registration fee......................... $ 547
Legal fees and expenses...................... 15,000
Accounting fees and expenses................. 15,000
Printing and engraving expenses.............. 5,000
Miscellaneous................................ 453
------
Total........................................ $36,000
=======
The Registrant intends to pay all expenses of registration, issuance and
distribution.
ITEM 15. 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 Incorporation ("Charter") provides that the
Registrant will indemnify its directors and officers to the fullest extent
permitted by law.
Under the provisions of the 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 Charter and the Registrant's 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.
II-1
16
ITEM 16. EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
-------------- ----------------------
4.1 Form of Certificate of Common Stock of the Company
(incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-1 dated May 18, 1998)
4.2 Registration Rights Agreement among the Company and the
purchasers of Common Stock and Warrants dated September 7,
1999 (incorporated by reference to Exhibit 4.1 to the
Company's Current Report on Form 8-K dated September 23,
1999)
4.3 Registration Rights Agreement among the Company and the
Buyers of its Convertible Notes dated September 20, 1999
(incorporated by reference to Exhibit 4.2 to the Company's
Current Report on Form 8-K dated September 23, 1999)
4.4 Amended and Restated Registration Rights Agreement, dated
as of March 1, 1997, among the Company, 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 Company's Series A Convertible
Participating Preferred Stock (incorporated by reference to
Exhibit 10.15 to the Company's Registration Statement on
Form S-1 dated May 18, 1998)
4.5 Amendment to Amended and Restated Registration Rights
Agreement among the Company and certain holders of its
common stock dated September 7, 1999 (incorporated by
reference to Exhibit 4.4 to the Company's Current Report on
Form 8-K dated September 23, 1999)
4.6 Form of Warrant to Purchase Common Stock of the Company
issued to purchasers of the Company's Common Stock in its
private offering dated September 7, 1999 (incorporated by
reference to Exhibit 4.4 to the Company's Current Report on
Form 8-K dated September 23, 1999)
4.7 Form of Warrant to Purchase Common Stock of the Company
issued to purchasers of the Company's Convertible Notes on
September 20, 1999 (incorporated by reference to Exhibit
4.5 to the Company's Current Report on Form 8-K dated
September 23, 1999)
4.8 Form of Warrant issued to Michael A. Waters dated September
17, 1999 (incorporated by reference to Exhibit 4.6 to the
Company's Current Report on Form 8-K dated September 23,
1999)
4.9 Registration Rights Agreement among the Company and the
shareholders and certain employees of Uniflame, Inc. dated
March 31, 2000 (incorporated by reference to Exhibit 4.1 to
the Company's Current Report on Form 8-K dated April 18,
2000)
4.10 Certificate of Designation, Rights and Preferences of
Series A Convertible Preferred Stock dated September 7,
2000
4.11 Registration Rights Agreement among the Company and the
Purchasers of the Company's Series A Convertible Preferred
Stock dated September 7, 2000
5 Opinion of Pedersen & Houpt, P.C.
23.1 Consent of Pedersen & Houpt, P.C. (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP
23.3 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included on signature page)
II-2
17
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) 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; provided, however, that notwithstanding
the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(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;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 of Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(3) 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.
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.
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 provisions described under Item 15 above, 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
of 1933 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 Securities
Act and will be governed by the final adjudication of such issue.
II-3
18
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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Winston-Salem, State of North Carolina, on
September 25, 2000.
Blue Rhino Corporation
By: /s/ Billy D. Prim
-----------------------------
Billy D. Prim
Chairman of the Board, President
and Chief Executive Officer
II-4
19
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Billy D. Prim and Mark Castaneda, and each of them, the true and lawful
attorneys-in-fact and agents of the undersigned, with full power of substitution
and resubstitution, for and in the name, place and stead of the undersigned, in
any and all capabilities, to sign any and all amendments (including
post-effective amendments, exhibits thereto and other documents in connection
therewith) to this Registration Statement and any subsequent registration
statement filed by the Registrant pursuant to Rule 462(b) of the Securities Act
of 1933, as amended, which relates to this Registration Statement, and to file
the same, with all exhibits thereto and all documents in connection therewith,
with the Securities and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute, 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 September 25, 2000.
/s/ Billy D. Prim Chairman of the Board, President and Chief
- ------------------------------------ Executive Officer (Principal Executive Officer)
Billy D. Prim
/s/ Mark Castaneda Secretary, Chief Financial Officer and
- ------------------------------------ Director (Principal Financial and Accounting
Mark Castaneda Officer)
/s/ Andrew J. Filipowski Vice Chairman of the Board
- ------------------------------------
Andrew J. Filipowski
/s/ Richard A. Brenner Director
- ------------------------------------
Richard A. Brenner
/s/ Craig J. Duchossois Director
- ------------------------------------
Craig J. Duchossois
/s/ Steven D. Devick Director
- ------------------------------------
Steven D. Devick
/s/ Robert J. Lunn Director
- ------------------------------------
Robert J. Lunn
/s/ John H. Muehlstein Director
- ------------------------------------
John H. Muehlstein
/s/ David L. Warnock Director
- ------------------------------------
David L. Warnock
II-5