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EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
BLUE RHINO CORPORATION,
QUICKSHIP ACQUISITION CORP.,
QUICKSHIP, INC.,
THOMAS E. BRANDTONIES,
GOLD BANK
AND
GOLD BANC CORPORATION, INC.
I, Mark Castaneda, the duly elected Secretary of QuickShip Acquisition
Corp. ("QuickShip Acquisition"), do hereby certify that this Agreement and Plan
of Reorganization was duly adopted by the sole stockholder of QuickShip
Acquisition pursuant to Section 251(c) of the Delaware General Corporation Law.
/s/ Mark Castaneda
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Mark Castaneda, Secretary
I, David Locy, the duly elected Assistant Secretary of QuickShip, Inc.
("QuickShip"), do hereby certify that this Agreement and Plan of Reorganization
was duly adopted by the stockholders of QuickShip pursuant to Section 251(c) of
the Delaware General Corporation Law.
/s/ David Locy
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David Locy, Assistant Secretary
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "AGREEMENT"), dated as
of October 25, 2000, is among QUICKSHIP, INC., a Delaware corporation
("QUICKSHIP"), QUICKSHIP ACQUISITION CORP., a Delaware corporation ("ACQUISITION
SUB"), BLUE RHINO CORPORATION, a Delaware corporation ("BLUE RHINO"), Thomas E.
Brandtonies ("BRANDTONIES"), Gold Bank, a Kansas bank, and Gold Banc
Corporation, Inc., a Kansas corporation ("GOLD BANC");
R E C I T A L S:
The parties desire that Acquisition Sub shall be merged with and into
QuickShip (said transaction being hereinafter referred to as the "MERGER"),
and the parties desire to provide for certain undertakings, conditions,
representations, warranties and covenants in connection with the transactions
contemplated hereby.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 Merger
QuickShip and Acquisition Sub are constituent corporations (the
"CONSTITUENT CORPORATIONS") to the Merger as contemplated by the Delaware
General Corporation Law (the "DGCL"). At the Effective Time:
(a) Acquisition Sub shall be merged into QuickShip in accordance with
the applicable provisions of the DGCL, with QuickShip being the surviving
corporate entity (hereinafter sometimes referred to as the "SURVIVING
CORPORATION").
(b) The separate existence of Acquisition Sub shall cease and the
Merger shall in all respects have the effects provided in Section 1.5.
(c) The Certificate of Incorporation of QuickShip at the Effective Time
shall be the Certificate of Incorporation of the Surviving Corporation.
(d) The Bylaws of QuickShip at the Effective Time shall be the Bylaws
of the Surviving Corporation.
(e) The directors and officers of QuickShip as of the Effective Time
shall be the directors and officers of the Surviving Corporation until their
successors are elected or appointed according to the Bylaws of the Surviving
Corporation.
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1.2 Stockholder Approval; Filing
By executing this Agreement, each of Brandtonies and Gold Banc, who
together hold all of the common stock of QuickShip, par value $1.00 ("QUICKSHIP
COMMON STOCK"), expressly approves this Agreement and the Merger in all
respects. Upon fulfillment or waiver of the conditions specified in Article VII,
the Surviving Corporation will cause a Certificate of Merger substantially in
the form of Exhibit A hereto to be executed and filed with the Secretary of
State of Delaware, as provided in Section 251 of the DGCL.
1.3 Effective Time
The Merger shall be effective on the day and hour specified in the
Certificate of Merger filed as provided in Section 1.2 (herein sometimes
referred to as the "EFFECTIVE TIME").
1.4 Closing
The closing of the transactions contemplated by this Agreement (the
"CLOSING") shall take place at the offices of Womble Carlyle Sandridge & Rice,
PLLC, Winston-Salem, North Carolina, at 10:00 a.m. on the date hereof, or such
later date as the parties may otherwise agree (the "CLOSING DATE").
Notwithstanding the foregoing, unless Gold Banc otherwise consents in writing,
in no event shall the Closing occur unless prior thereto or concurrently
therewith QuickShip pays and satisfies in full the Payoff Amount (as defined in
Section 5.3(b)).
1.5 Effect of Merger
From and after the Effective Time, the separate existence of
Acquisition Sub shall cease, and the Surviving Corporation shall thereupon and
thereafter, to the extent consistent with its Certificate of Incorporation,
possess all of the rights, privileges, immunities and franchises, of a public as
well as a private nature, of each of the Constituent Corporations; and all
property, real, personal and mixed, and all debts due on whatever account, and
all other choses in action, and each and every other interest of or belonging to
or due to each of the Constituent Corporations shall be taken and deemed to be
transferred to and vested in the Surviving Corporation without further act or
deed; and the title to any real estate or any interest therein vested in either
of the Constituent Corporations shall not revert or be in any way impaired by
reason of the Merger. The Surviving Corporation shall thenceforth be responsible
for all the liabilities, obligations and penalties of each of the Constituent
Corporations; and any claim, existing action or proceeding, civil or criminal,
pending by or against either of the Constituent Corporations may be prosecuted
as if the Merger had not taken place, or the Surviving Corporation may be
substituted in its place; and any judgment rendered against either of the
Constituent Corporations may be enforced against the Surviving Corporation.
Neither the rights of creditors nor any liens upon the property of either of the
Constituent Corporations shall be impaired by reason of the Merger.
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1.6 Further Assurances
If, at any time after the Effective Time, the Surviving Corporation
shall consider or be advised that any further deeds, assignments or assurances
in law or any other actions are necessary, desirable or proper to vest, perfect
or confirm of record or otherwise, in the Surviving Corporation, the title to
any property or rights of the Constituent Corporations acquired or to be
acquired by reason of, or as a result of, the Merger, the Constituent
Corporations agree that such Constituent Corporations and their proper officers
and directors shall and will execute and deliver all such proper deeds,
assignments and assurances in law and do all things necessary, desirable or
proper to vest, perfect or confirm title to such property or rights in the
Surviving Corporation and otherwise to carry out the purpose of this Agreement,
and that the proper officers and directors of the Surviving Corporation are
fully authorized and directed in the name of the Constituent Corporations or
otherwise to take any and all such actions.
1.7 Merger Consideration; Acknowledgment of Stockholders
(a) At the Effective Time, by virtue of the Merger and without any
action on the part of QuickShip or the holders of record of QuickShip Common
Stock, each of the (i) 650 issued and outstanding shares of QuickShip Common
Stock held by Brandtonies (the "BRANDTONIES SHARES") shall be converted into,
and shall represent the right to receive, upon surrender of the certificate
representing such share of QuickShip Common Stock, (A) 205.1277 shares of Blue
Rhino's Series A Convertible Preferred Stock ("BLUE RHINO SERIES A STOCK") (for
a total of 133,333 shares of Blue Rhino Series A Stock), (B) $615.38 and (C) a
warrant (collectively, the "WARRANT") to purchase 153.8461 shares of Blue
Rhino's common stock, par value $0.001 ("BLUE RHINO COMMON STOCK") (for a total
of 100,000 shares of Blue Rhino Common Stock), which Warrant shall have an
exercise price equal to the average closing price per share of Blue Rhino Common
Stock on the Nasdaq National Market System over the fifteen trading days ending
on the fifth trading day immediately preceding the Closing Date; and (ii) 216.67
issued and outstanding shares of QuickShip Common Stock held by Gold Banc (the
"GOLD BANC SHARES") shall be converted into, and shall represent the right to
receive, upon surrender of the certificate representing such share of QuickShip
Common Stock, 1,538.437855 shares of Blue Rhino Series A Stock (for a total of
333,333.33 shares of Blue Rhino Series A Stock). The Warrant and the shares of
Blue Rhino Series A Stock into which the Brandtonies Shares and the Gold Banc
Shares will convert are referred to collectively herein as the "MERGER
CONSIDERATION."
(b) Each of Brandtonies and Gold Banc expressly represents, acknowledges
and agrees that: (i) he and it have such knowledge and experience in financial
and business matters as to be capable of making an informed decision regarding
the Merger; (ii) he and it have sought and received such legal and tax advice as
he and it have considered necessary to make an informed decision regarding the
Merger; (iii) Gold Banc will receive Merger Consideration in the Merger in
excess of the Merger Consideration that Brandtonies will receive in the Merger;
(iv) such disparate Merger Consideration is entirely fair to each of them and
(v) neither Blue Rhino nor Acquisition Sub has made any representation or
warranty whatsoever regarding the treatment of the Merger for federal or state
tax purposes.
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(c) At the Effective Time, each share of the outstanding common stock
of Acquisition Sub shall be converted into one (1) share of QuickShip Common
Stock.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF QUICKSHIP AND BRANDTONIES
QuickShip and Brandtonies, acknowledging that Blue Rhino and
Acquisition Sub are executing this Agreement and consummating the Merger in
reliance thereon, jointly and severally represent and warrant to Blue Rhino and
Acquisition Sub, as follows:
2.1 Authorized and Effective Agreement
QuickShip has all requisite corporate power and authority to enter into
and perform all of its obligations under this Agreement. The execution and
delivery by QuickShip of this Agreement and the Certificate of Merger, and
consummation of the transactions contemplated hereby, have been duly and validly
authorized by all necessary corporate action. This Agreement constitutes the
legal, valid and binding obligation of QuickShip and Brandtonies and is
enforceable against QuickShip and Brandtonies in accordance with its terms.
2.2 Share Ownership; Capitalization
(a) Brandtonies is the owner, beneficially and of record, of all right,
title and interest in and to the Brandtonies Shares, and Gold Banc is the owner,
beneficially and of record, of all right, title and interest in and to the Gold
Banc Shares. Brandtonies has, and will have at the Effective Time, good and
marketable title to all such Brandtonies Shares, and Gold Banc has, and will
have at the Effective Time, good and marketable title to all such Gold Banc
Shares, in each case free and clear of all liens, pledges, encumbrances,
security interests, options or other restrictions, except for the liens on the
Brandtonies Shares held by Gold Banc (and/or any subsidiary or affiliate
thereof) to be terminated prior to the Effective Time.
(b) The authorized capital stock of QuickShip consists of 200,000
shares of QuickShip Common Stock, of which 866.67 shares are issued and
outstanding, and 20,000 shares of preferred stock, par value $100.00, none of
which are issued and outstanding. No party other than Brandtonies and Gold Banc
owns, beneficially or of record, any shares of QuickShip's capital stock. All of
the Brandtonies Shares and all of the Gold Banc Shares are validly issued, fully
paid and nonassessable, are free from, and were not issued in violation of any,
preemptive rights. Except for that certain Option Agreement dated August 7, 2000
by and among Blue Rhino, Brandtonies, QuickShip and Gold Banc, as modified by
that certain Option Rescission Agreement by and among Blue Rhino, Brandtonies,
QuickShip and Gold Banc (the "OPTION AGREEMENT"), and the Gold Banc Warrants (as
defined in Section 5.1), there are no outstanding or authorized options,
warrants, rights, contracts, calls, puts, right to subscribe, conversion rights
or other agreements or commitments to which QuickShip is a party or which are
binding upon QuickShip providing for the issuance, disposition or acquisition of
any of its capital stock. There are no outstanding or authorized stock
appreciation, phantom stock or similar rights with respect
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to QuickShip or its capital stock. There are no voting trusts, proxies or any
other agreements or understandings with respect to the voting of the capital
stock of QuickShip. QuickShip is not subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire or retire any of its capital
stock.
2.3 Organization and Good Standing
QuickShip is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. QuickShip has the requisite
corporate power and authority to own, operate and lease its properties and to
carry on its business as now being conducted. QuickShip is duly qualified to do
business as a foreign corporation and is in good standing in all other
jurisdictions in which the character of the property owned, leased or operated
by it or the nature of the business conducted by it makes such qualification
necessary.
2.4 No Conflict or Breach
The execution, delivery and performance of this Agreement by QuickShip,
and the consummation of the Merger, do not and will not:
(a) conflict with or constitute a violation of the Certificate
of Incorporation or Bylaws of QuickShip;
(b) conflict with or constitute a violation of any law,
statute, judgment, order, decree or regulation of any legislative body,
court, administrative agency, governmental authority or arbitrator
applicable to or relating to QuickShip or its assets;
(c) conflict with, constitute a default under, result in a
breach or acceleration of or adversely affect the performance of, or
require notice to or the consent of any third party (other than Gold
Banc) under any contract, agreement, commitment, lease, mortgage, note,
license or other instrument or obligation to which QuickShip is a party
or by which QuickShip is bound or by which the assets of QuickShip are
affected; or
(d) result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever on any of the assets of
QuickShip or upon the Brandtonies Shares or the Gold Banc Shares.
2.5 Minute Books
The minute books of QuickShip are true, correct, complete and current
in all material respects and contain accurate and complete records of all
material actions taken by its stockholders, its Board of Directors and each
committee of its Board of Directors, and all signatures contained in such minute
books are the true signatures of the persons whose signatures they purport to
be.
2.6 Financial Statements; No Undisclosed Liabilities
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Brandtonies or QuickShip has previously delivered to Blue Rhino true
and complete copies of (i) the unaudited balance sheets of QuickShip as of
December 31, 1999 and 1998 and the related statements of operations,
stockholders' equity and cash flows for the fiscal years then ended, including
the footnotes to such statements, additional or supplemental information
supplied therewith; and (ii) interim unaudited financial reports prepared for
each month since December 31, 1999. The documents described in clauses (i) and
(ii) (collectively, the "FINANCIAL STATEMENTS"): (a) are in accordance with the
books and records of QuickShip; (b) present fairly the assets, liabilities and
financial condition of QuickShip as of the respective dates of the Financial
Statements, and the results of operations for the periods then ended; and (c)
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. QuickShip has no
liability or obligation, whether accrued, absolute or contingent, that is not
reflected or reserved against in the most recent Financial Statements, including
without limitation any liability for unpaid taxes (and penalties and interest
with respect thereto). Any items of income or expense that are unusual or of a
nonrecurring nature are separately disclosed in the Financial Statements.
2.7 Books and Records
The books and records of QuickShip are true, accurate and complete and,
where appropriate, have been maintained in accordance with generally accepted
accounting principles applied on a consistent basis. As of the Effective Time,
all such books and records, including, without limitation, all tax returns filed
by QuickShip, will be in the possession of QuickShip.
2.8 Title to Assets
QuickShip has good and marketable title to all of the properties and
assets (tangible or intangible) owned by it (including, without limitation,
those properties and assets shown on the Financial Statements) and a valid
leasehold or other possessory interest in all other properties and assets used,
operated or occupied by it, located on its premises or otherwise shown on the
Financial Statements, except for tangible personal property sold or disposed of
in the ordinary course of its business and consistent with past practice, and
such assets and properties represent all the assets and properties necessary to
conduct the business of QuickShip as conducted on the date hereof and as
proposed to be conducted hereafter. All of QuickShip's properties and assets
(whether tangible or intangible, owned, leased or otherwise acquired) are free
and clear of any liens, claims, charges, security interests, mortgages, pledges
or other encumbrances or restrictions of any nature whatsoever, other than the
liens held by Gold Banc (and/or any subsidiary or affiliate thereof) to be
terminated prior to the Effective Time. QuickShip does not own any real
property.
2.9 Intellectual Property
Exhibit B sets forth a list of all (i) trademarks, service marks, trade
names, logos and other designations owned or used by QuickShip, all United
States, foreign and state registrations relating thereto; (ii) copyrighted works
owned by QuickShip and registrations issued by the
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United States Copyright Office or the office of any foreign jurisdiction for any
of the copyrights; (iii) inventions owned or used by QuickShip which are the
subject of United States or foreign letters patent or applications therefor,
together with the applicable patent number, application number, application date
and issue date; and (iv) confidential or proprietary processes, formulas,
computer software, script, programming code, algorithms, technical data, and
other similar information that is of commercial value to QuickShip, including a
brief description thereof (collectively, "INTELLECTUAL PROPERTY"). QuickShip
owns all right, title and interest in and to each item included in the
Intellectual Property, free and clear of any liens, pledges, encumbrances,
security interests, options, licenses or other restrictions, other than liens
held by Gold Banc (and/or any subsidiary or affiliate thereof) all of which will
be terminated prior to the Effective Time. The Intellectual Property consists of
all of the intellectual property rights necessary to conduct the business of
QuickShip as conducted on the date hereof and as proposed to be conducted
hereafter. All registrations relating to the Intellectual Property are validly
issued and remain in full force and effect. Each trademark has been in
continuous use on all goods described in the applicable registrations. There are
no claims or suits pending or threatened against QuickShip challenging
QuickShip's ownership of or unencumbered right to use any of the Intellectual
Property, nor does there exist any basis therefor. There are no claims or suits
pending or threatened against QuickShip alleging that any of the Intellectual
Property infringes any rights of any third parties, nor does there exist any
basis therefor.
2.10 Compliance with Laws
There is not outstanding or threatened, any order, writ, injunction or
decree of any court, governmental agency or arbitration tribunal against or
involving QuickShip. QuickShip is currently, and has been at all times, in full
compliance with all laws, statutes, rules, regulations, orders and licensing
requirements of federal, state, local and foreign agencies and authorities
applicable to the business and properties of QuickShip (including, without
limitation, those relating to antitrust and trade regulation, civil rights,
environment, labor and employment discrimination, affirmative action, safety and
health). No investigation or review by any federal, state or local body or
agency is pending, threatened or planned with respect to QuickShip.
2.11 No Adverse Change
Since December 31, 1999, QuickShip has conducted its operations and
business only in the ordinary course consistent with past practices and, except
as disclosed in the Financial Statements, has not suffered a material adverse
change in its business, financial condition, operating results, earnings,
assets, customer, supplier, employee and sales representative relations,
business prospects, business condition or financing arrangements, or suffered
any material casualty loss or damage to its assets (whether or not covered by
insurance).
2.12 No Litigation; Environmental Matters; Benefit Plans; Contracts
(a) There are no claims, actions, suits, inquiries, hearings or
investigations ("ACTIONS") pending or threatened, against QuickShip. No Actions
have been brought within the last two years against QuickShip. There are no
facts or circumstances that could serve as the
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basis for any Action against QuickShip, or, by virtue of the execution of this
Agreement or the consummation of the Merger, against Blue Rhino or Acquisition
Sub.
(b) QuickShip is not in violation of, and has not violated, any
applicable federal, state, county or local statutes, laws, regulations, rules,
ordinances, codes, licenses or permits of any governmental authorities relating
to environmental matters, including by way of illustration and not by way of
limitation the Comprehensive Environmental Response, Compensation and Liability
Act, the Resource Conservation Recovery Act, the Clean Air Act, the Clean Water
Act, the Occupational Safety and Health Act, the Toxic Substances Control Act,
any "Superfund" or "Superlien" law or any other federal, state or local statute,
law, ordinance, code, rule, regulation, order, decree or guideline (whether
published or unpublished) regulating, relating to or imposing liability or
standards of conduct concerning Hazardous Materials, in each case as amended
from time to time ("ENVIRONMENTAL LAWS"). For purposes of this Agreement,
"Hazardous Materials" includes but is not necessarily limited to asbestos,
asbestos containing materials, polychlorinated biphenyls, lead-based paints, any
petroleum, petroleum by-product (including, but not limited to, crude oil,
diesel oil, fuel oil, gasoline, lubrication oil, oil refuse, used motor oil, oil
mixed with other waste, oil sludge and all other liquid hydrocarbons, regardless
of specific gravity), natural or synthetic gas or other hazardous or toxic
substances, materials, wastes, pollutants or contaminants defined under or
regulated by the Environmental Laws.
(c) There are no Plans, as defined below, contributed to, maintained or
sponsored by QuickShip, to which QuickShip is obligated to contribute or with
respect to which QuickShip has any liability or potential liability, whether
direct or indirect, including all Plans contributed to, maintained or sponsored
by each member of the controlled group of companies, within the meaning of
Sections 414(b), 414(c), and 414(m) of the Internal Revenue Code of 1986, as
amended, of which QuickShip is a member. For purposes of this Agreement, the
term "PLANS" shall mean: (a) employee benefit plans as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
whether or not funded and whether or not terminated; (b) employment agreements;
and (c) personnel policies or fringe benefit plans, policies, programs and
arrangements, whether or not subject to ERISA, whether or not funded, and
whether or not terminated, including, without limitation, stock bonus, deferred
compensation, pension, severance, bonus, vacation, travel, incentive and health,
disability and welfare plans.
(d) Brandtonies or QuickShip has delivered to Blue Rhino true and
complete copies of all written contracts, commitments, agreements (including
agreements for the borrowing of money or the extension of credit), leases,
licenses, understandings and obligations, whether written or oral, to which
QuickShip is party or by which QuickShip is bound or affected, that might
reasonably be considered material to the operation of its business, including
any and all amendments and other modifications thereto (the "CONTRACTS"). Each
of the Contracts is valid, binding and enforceable in accordance with its terms
and is in full force and effect. There are no existing defaults, and no events
or circumstances have occurred that, with or without notice or lapse of time or
both, would constitute defaults, under any of the Contracts.
2.13 Names; Bank Accounts
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(a) During the term of its existence, QuickShip has not been known by
or conducted business under any other name, other than Digi-Postal Corporation
and Acctronix Corporation. All assets and rights are held by, and all
agreements, obligations, expenses and transactions have been entered into,
incurred and conducted by QuickShip in the name of QuickShip. QuickShip has the
unencumbered right to use its name, and neither QuickShip nor Brandtonies are
aware of the use of any corporate name, trade name, trademark, service mark or
other designation which could create a likelihood of confusion with QuickShip's
name.
(b) Brandtonies or QuickShip has previously delivered to Blue Rhino:
(i) a true and complete list of the names of each bank, trust company,
securities broker and other financial institution at which QuickShip has an
account or safe deposit box or maintains a banking, custodial, trading or other
similar relationship; and (ii) a true and complete list and description of each
such account, box and relationship, indicating in each case the account number
and the names of the officers, employees, agents or other representatives of
QuickShip having access, signatory power or power to give direction with respect
to such account, box or relationship.
2.14 UCCs
On or prior to the Effective Time, UCC Termination Statements
terminating all liens on the assets of QuickShip and the Brandtonies Shares have
been, or will have been, filed in all locations in which UCC-1 Financing
Statements are on record in respect thereof.
2.15 State Takeover Laws
QuickShip has taken all necessary action to exempt the transactions
contemplated by this Agreement from any applicable moratorium, fair price,
business combination, control share or other anti-takeover laws, and no such law
shall be activated or applied as a result of such transactions. Neither the
Certificate of Incorporation nor the Bylaws of QuickShip, nor any other document
of QuickShip or to which QuickShip is a party, contains a provision that
requires the vote or approval of any other class of capital stock or voting
security (other than QuickShip Common Stock) to approve the Merger or any of the
other transactions contemplated in this Agreement.
2.16 No Right to Dissent
Nothing in the Certificate of Incorporation or the Bylaws of QuickShip
provides or would provide to any person, including without limitation the
holders of QuickShip Common Stock, upon execution of this Agreement and
consummation of the transactions contemplated hereby, rights of dissent and
appraisal of any kind.
2.17 No Conflicting Agreements
Except as provided in the Option Agreement, neither QuickShip nor any
stockholder of QuickShip nor any affiliate of any stockholder of QuickShip is
party to or is bound by any
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agreement regarding the sale of any of the Brandtonies Shares or the Gold Banc
Shares or any other sale of an equity interest in QuickShip or any other form of
transaction involving ownership of QuickShip or any part of QuickShip's business
or assets other than as contemplated by this Agreement.
2.18 Investment Intent
Brandtonies: (i) understands that neither the issuance in the Merger of
the shares of Blue Rhino Series A Stock and the Warrant as set forth in Section
1.7(a) nor the issuance of Blue Rhino Common Stock issuable upon conversion or
exercise thereof (collectively, the "BRANDTONIES BLUE RHINO SECURITIES") have
been registered under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), or under any state securities laws, and are being issued in reliance upon
federal and state exemptions for transactions not involving any public offering;
(ii) is acquiring the Brandtonies Blue Rhino Securities solely for his own
account for investment purposes and not with a view to the distribution of the
Brandtonies Blue Rhino Securities and will not transfer any Brandtonies Blue
Rhino Securities without compliance with all applicable securities laws; (iii)
is a sophisticated investor with sufficient knowledge and experience in
financial, investment and business affairs to permit him to evaluate the merits
and risks involved in acquiring the Brandtonies Blue Rhino Securities and is
able to bear the economic risk and lack of liquidity inherent in holding the
Brandtonies Blue Rhino Securities for an indefinite period of time, including
the risk that the Brandtonies Blue Rhino Securities may lose all of their value;
and (iv) has received certain information concerning Blue Rhino and has had the
opportunity to ask questions of, and receive answers from, Blue Rhino and its
representatives concerning the business of Blue Rhino and the terms of the
Brandtonies Blue Rhino Securities and to obtain additional information as
desired in order to evaluate the merits and risks inherent in acquiring the
Brandtonies Blue Rhino Securities.
ARTICLE III
INDEMNIFICATION
3.1 Indemnification
Brandtonies shall indemnify, defend and hold harmless Blue Rhino and
its officers, directors, representatives and affiliates (in any case, the
"INDEMNIFIED PARTY") from, against and with respect to any and all loss
(including, without limitation, the Merger Consideration), damage, claim,
obligation, liability, cost and expense (including, without limitation,
reasonable attorneys' fees and costs and expenses incurred in investigating,
preparing, defending against or prosecuting any litigation, claim, proceeding or
demand), of any kind or character (a "LOSS"), arising out of or in connection
with: (i) any breach of any of the representations or warranties of Brandtonies
or QuickShip contained in or made pursuant to this Agreement or any other
certificate or document delivered pursuant to this Agreement; or (ii) any
failure by Brandtonies or QuickShip to perform or observe, or to have performed
or observed, in full, any covenant, agreement, obligation or condition to be
performed or observed pursuant to this Agreement (in either case, an
"INDEMNIFICATION EVENT").
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3.2 Notice of Claim; Cooperation
In the event that an Indemnified Party seeks to be indemnified
hereunder, such Indemnified Party shall promptly notify Brandtonies in writing
of any claim for recovery, specifying in reasonable detail the nature of the
Loss. The Indemnified Party shall provide to Brandtonies as promptly as
practicable thereafter all information and documentation reasonably requested by
Brandtonies to verify the claim asserted. The failure of the Indemnified Party
to notify Brandtonies on a timely basis will not relieve Brandtonies of any
liability that he may have to the Indemnified Party. Each of Brandtonies and the
Indemnified Party shall cooperate in the defense or prosecution of any third
party claim and shall furnish such records, information and testimony and shall
attend such conferences, discovery proceedings and trials as may be reasonably
requested in connection therewith.
3.3 Right to Offset
If the Indemnified Party suffers any Loss described in Section 3.1,
then, in addition to and without limitation of any other rights or remedies to
which the Indemnified Party may be entitled as a result of such Loss, the
Indemnified Party may cause QuickShip to offset the amount of such Loss against
any payment of salary or other compensation due to Brandtonies under the
Employment Agreement (as defined in Section 4.2); provided, that (i) in no event
shall QuickShip offset the amount of such Loss against any payment of salary or
other compensation due to Brandtonies under the Employment Agreement without
giving prior written notice to Brandtonies of the reasons therefor and (ii) in
the event of a final, nonappealable adjudication to the effect that Brandtonies
is not responsible to indemnify or otherwise compensate the Indemnified Party
for any Loss for which compensation due Brandtonies has been offset, the
Indemnified Party shall cause QuickShip to pay promptly the amount of such
withheld compensation, together with interest accrued from the date each such
withheld amount became payable at the Prime Rate published and set from time to
time by Bank of America, Charlotte, North Carolina.
ARTICLE IV
COVENANTS
4.1 Directors and Officers
If requested by Blue Rhino at any time at or after the Effective Time,
all directors and officers of QuickShip as of the Effective Time shall resign.
4.2 Employment Agreement
At the Effective Time, Blue Rhino shall cause QuickShip to enter into
an employment agreement with Brandtonies, such agreement to have a two-year term
and provide for Brandtonies to serve as President of QuickShip, a subsidiary of
Blue Rhino, with an annual base salary of $200,000 and to otherwise be
substantially in the form of Exhibit C hereto (the "EMPLOYMENT AGREEMENT").
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ARTICLE V
GOLD BANC PROVISIONS
5.1 Definitions
As used herein, the term "GOLD BANC LOAN AGREEMENTS" shall mean,
collectively: (A) the Letter Agreement dated April 14, 2000 among Gold Banc,
Gold Bank (the banking subsidiary of Gold Banc), QuickShip and Brandtonies; (B)
the Workout and Loan Agreement dated June 23, 2000 by and among Gold Banc,
QuickShip and Brandtonies (the "WORKOUT AGREEMENT"); (C) the "QuickShip Loan
Documents" (as defined in the Workout Agreement) that were in existence prior to
April 13, 2000; (D) the Stockholders Agreement dated as of April 14, 2000 by and
among QuickShip, Brandtonies and Gold Banc; (E) the two Warrants to Purchase
Common Stock of QuickShip dated June 23, 2000 and issued to Gold Banc (the "GOLD
BANC WARRANTS"); (F) the Subordination Agreement dated June 23, 2000 by and
among QuickShip, Brandtonies and Gold Banc; (G) the Guaranty and Pledge
Agreement dated as of April 27, 2000 by and among Brandtonies and Gold Banc; and
(H) any and all other documents or agreements executed or delivered in
connection with any of the foregoing documents.
5.2 Gold Banc Agreements
Gold Banc hereby agrees that as of the Effective Time, (i) each of the
Gold Banc Loan Agreements shall terminate in their entirety without any action
of any party thereto (including, without limitation, the Gold Banc Warrants,
which shall be surrendered marked "Terminated" by an authorized officer of Gold
Banc), except that those sections of the Gold Banc Loan Agreements set forth on
Exhibit D shall survive such termination and remain in full force and effect;
and (ii) any and all liens and security interests on the Brandtonies Shares and
all of the assets of QuickShip shall terminate; Gold Banc shall promptly execute
and deliver, and shall cause Gold Bank to promptly execute and deliver, to Blue
Rhino such termination statements, releases of liens and other documents to
evidence the termination of such liens and security interests as Blue Rhino
shall reasonably request.
5.3 Gold Banc Loans
(a) Gold Banc expressly represents, warrants and acknowledges to, and
agrees with, Blue Rhino that: (a) it has purchased all of the rights of, and
assumed all of the obligations of, its subsidiary, Gold Bank, in respect of
QuickShip and QuickShip's (i) Line of Credit (Gold Banc's loan #81343),
evidenced by a Promissory Note dated October 2, 1999, as modified by a
Modification Agreement dated February 28, 2000, a Second Modification Agreement
dated April 14, 2000 and a Third Modification Agreement dated as of August 7,
2000; (ii) Lease Line (Gold Banc's loan #81407), evidenced by a Promissory Note
dated January 7, 2000, as modified by two Modification Agreements dated February
25, 2000, a Third Modification Agreement dated April 14, 2000 and a Fourth
Modification Agreement dated as of August 7, 2000; and (iii) two revolving
credit card lines (clauses (i), (ii) and (iii), collectively, the "GOLD BANC
LOANS"); and
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(b) Gold Bank has no interest with respect to QuickShip, whether as a creditor,
lender, equity holder or otherwise.
(b) Prior to or concurrently with the Closing, QuickShip shall pay and
satisfy in full: (i) all principal and accrued interest on each of the Gold Banc
Loans; (ii) the $50,000 late fee payable pursuant to paragraph 9 of the Workout
Agreement; (iii) any additional late fees due and payable by QuickShip pursuant
to the Gold Banc Loan Agreements (as defined in Section 5.1(a)); (iv) all of
Gold Banc's legal fees that are payable by QuickShip pursuant to Section 9.1(b);
and (v) all other amounts due and payable by QuickShip under the Gold Banc Loan
Agreements (clauses (i)-(v), collectively, the "PAYOFF AMOUNT").
(c) Each of Gold Banc, Brandtonies and QuickShip expressly represents,
warrants and acknowledges to, and agrees with, Blue Rhino and each other that:
(i) Exhibit E contains a true, correct and complete list of (A) the Gold Banc
Loans, the outstanding principal balance and unpaid interest due thereon, the
interest rates thereof and all other fees in respect thereof and (B) all other
itemized amounts comprising the Payoff Amount; and (ii) the Payoff Amount shall
be calculated based solely on the information set forth on Exhibit E.
5.4 Reserved.
5.5 Gold Banc Equity Investment in Blue Rhino
As of the Effective Time, Gold Banc shall purchase from Blue Rhino
666,666.67 shares of Blue Rhino Series A Stock at a purchase price of $6.00 per
share (for a total purchase price of $4,000,000.02) pursuant to a Subscription
Agreement substantially in the form attached hereto as Exhibit F (the
"SUBSCRIPTION AGREEMENT"). The parties hereto agree that the fair market value
of the Series A Stock is $6.00 per share.
5.6 Representations and Warranties
Gold Banc represents and warrants to Blue Rhino and Acquisition Sub as
follows:
(a) Gold Banc has all requisite corporate power and authority to enter
into and perform all of its obligations under this Agreement. The execution and
delivery by Gold Banc of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action. This Agreement constitutes the legal, valid and binding
obligation of Gold Banc and is enforceable against Gold Banc in accordance with
its terms.
(b) The execution, delivery and performance of this Agreement by Gold
Banc do not and will not conflict with or constitute a violation of (i) the
Articles of Incorporation or Bylaws of Gold Banc or (ii) any law, statute,
judgment, order, decree or regulation of any legislative body, court,
administrative agency, governmental authority or arbitrator applicable to or
relating to Gold Banc or its assets.
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(c) Gold Banc: (i) understands that neither the issuance in the Merger
of the shares of Blue Rhino Series A Stock as set forth in Section 1.7(a) nor
the issuance of Blue Rhino Common Stock issuable upon conversion thereof
(collectively, the "GOLD BANC BLUE RHINO SECURITIES") have been registered under
the Securities Act, or under any state securities laws, and are being issued in
reliance upon federal and state exemptions for transactions not involving any
public offering; (ii) is acquiring the Gold Banc Blue Rhino Securities solely
for its own account for investment purposes and not with a view to the
distribution of Gold Banc Blue Rhino Securities and will not transfer any Gold
Banc Blue Rhino Securities without compliance with all applicable securities
laws; provided, that Blue Rhino acknowledges and agrees that Gold Banc may
transfer the Gold Banc Blue Rhino Securities as a capital contribution to any
wholly owned (either directly or through an unbroken chain of entities each of
which is wholly owned) subsidiary, including, without limitation, any such
subsidiary engaged in merchant banking or venture capital activities; provided
such transferee becomes a party to, and agrees to be bound by, the Stockholders
Agreement and Registration Rights Agreement (as defined in Section 7.1(c));
(iii) is a sophisticated investor with sufficient knowledge and experience in
financial, investment and business affairs to permit it to evaluate the merits
and risks involved in acquiring the Gold Banc Blue Rhino Securities and is able
to bear the economic risk and lack of liquidity inherent in holding the Gold
Banc Blue Rhino Securities for an indefinite period of time, including the risk
that the Gold Banc Blue Rhino Securities may lose all of their value; and (iv)
has received certain information concerning Blue Rhino and has had the
opportunity to ask questions of, and receive answers from, Blue Rhino and its
representatives concerning the business of Blue Rhino and the terms of the Gold
Banc Blue Rhino Securities and to obtain additional information as desired in
order to evaluate the merits and risks inherent in acquiring the Gold Banc Blue
Rhino Securities.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BLUE RHINO AND ACQUISITION SUB
6.1 Blue Rhino and Acquisition Sub
Blue Rhino and Acquisition Sub represent and warrant to Gold Banc, as
follows:
(a) Each of Blue Rhino and Acquisition Sub has all requisite corporate
power and authority to enter into and perform all of its obligations under this
Agreement. The execution and delivery by Blue Rhino and Acquisition Sub of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action. This Agreement
constitutes the legal, valid and binding obligation of Blue Rhino and
Acquisition Sub and is enforceable against Blue Rhino and Acquisition Sub in
accordance with its terms.
(b) The execution, delivery and performance of this Agreement by Blue
Rhino and Acquisition Sub do not and will not conflict with or constitute a
violation of (i) their respective Certificates of Incorporation or Bylaws or
(ii) any law, statute, judgment, order, decree or regulation of any legislative
body, court, administrative agency, governmental authority or arbitrator
applicable to or relating to them or their respective assets.
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6.2 Blue Rhino
Blue Rhino hereby reaffirms to Gold Banc all representations and
warranties made by Blue Rhino in Section 4 of the Subscription Agreement
(subject to the exceptions set forth on Schedule SE thereto), which
representations and warranties are incorporated by reference herein as if
restated in their entirety.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions Precedent - QuickShip
The obligations of QuickShip to effect the transactions contemplated by
this Agreement shall be subject to the satisfaction of the following conditions
at or prior to the Effective Time:
(a) Blue Rhino shall have caused QuickShip to pay and satisfy in full
its Promissory Note dated April 14, 2000 payable to Brandtonies in the original
principal amount of $500,000.
(b) Blue Rhino shall have filed the Certificate of Designation
substantially in the form attached hereto as Exhibit G with the Secretary of
State of Delaware (the "CERTIFICATE OF DESIGNATION"), which shall continue to be
in full force and effect as of the Effective Time.
(c) Blue Rhino, Cahill, Warnock Strategic Partners Fund II A, L.P.,
Cahill, Warnock Strategic Partners Fund II B, L.P., Billy D. Prim, Andrew J.
Filipowski, Dick Kiphart and Brandtonies shall have executed and delivered the
Amended and Restated Registration Rights Agreement and the Amended and Restated
Stockholders Agreement substantially in the forms attached hereto as Exhibit H
(the "REGISTRATION RIGHTS AGREEMENT") and Exhibit I (the "STOCKHOLDERS
AGREEMENT"), respectively.
7.2 Conditions Precedent - Acquisition Sub and Blue Rhino
The obligations of Acquisition Sub and Blue Rhino to effect the
transactions contemplated by this Agreement shall be subject to satisfaction of
the following conditions at or prior to the Effective Time:
(a) If the Closing Date occurs after the date hereof, (i) Brandtonies
and QuickShip shall have executed and delivered to Blue Rhino and Acquisition
Sub a certificate signed by Brandtonies, individually and as President of
QuickShip, to the effect that the representations and warranties of Brandtonies
and QuickShip set forth herein are true and correct on the Closing Date as if
remade in their entirety as of the Closing Date and (ii) Gold Banc shall have
executed and delivered to Blue Rhino and Acquisition Sub a certificate signed by
its President to the effect that its representations and warranties set forth
herein are true and correct on the Closing Date as if remade in their entirety
as of the Closing Date.
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(b) Brandtonies shall have paid in full his outstanding obligation to
QuickShip of approximately $64,000.
(c) Blue Rhino shall have received opinions of counsel to QuickShip in
a form reasonably acceptable to Blue Rhino's legal counsel.
7.3 Conditions Precedent - Gold Banc
The obligations of Gold Banc to effect the transactions contemplated by
this Agreement shall be subject to satisfaction of the following conditions at
or prior to the Effective Time:
(a) If the Closing Date occurs after the date hereof, Blue Rhino and
Acquisition Sub shall have executed and delivered to Gold Banc a certificate
signed by their respective Presidents or any Vice Presidents to the effect that
its representations and warranties set forth herein are true and correct on the
Closing Date as if remade in their entirety as of the Closing Date
(b) Gold Banc shall have been paid the Payoff Amount in full.
(c) Gold Banc shall have received opinions of counsel to Blue Rhino and
Acquisition Sub in a form reasonably acceptable to Gold Banc's legal counsel.
(d) Blue Rhino shall have filed the Certificate of Designation with the
Secretary of State of Delaware, which shall continue to be in full force and
effect as of the Effective Time.
(e) Blue Rhino, Cahill, Warnock Strategic Partners Fund II A, L.P.,
Cahill, Warnock Strategic Partners Fund II B, L.P., Billy D. Prim, Andrew J.
Filipowski, Dick Kiphart and Brandtonies shall have executed and delivered the
Registration Rights Agreement and the Stockholders Agreement.
(f) Blue Rhino shall have executed and delivered its acceptance of the
Subscription Agreement.
ARTICLE VIII
TERMINATION; SURVIVAL
8.1 Termination
This Agreement may be terminated:
(a) At any time prior to the Effective Time, by the mutual consent in
writing of the parties hereto.
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(b) At any time following October 31, 2000 by any party hereto in
writing, if the Effective Time has not occurred by the close of business on such
date, and the party giving the notice is not in material breach of any of its
representations, warranties, covenants or undertakings herein.
8.2 Effect of Termination
In the event this Agreement is terminated, this Agreement shall become
void and have no effect, except that Article II and Article III and Sections
5.2, 9.1, 9.2, 9.3, 9.6, 9.8, 9.9 and 9.10 shall survive the termination of this
Agreement.
8.3 Survival
All representations, warranties, covenants and agreements in this
Agreement or in any instrument delivered pursuant hereto shall survive the
Closing irrespective of any investigation made by or on behalf of any party.
ARTICLE IX
MISCELLANEOUS
9.1 Expenses.
(a) Each of Blue Rhino and Brandtonies will pay its and his own costs
and expenses, including the fees of attorneys, accountants, brokers and other
advisors, incurred at any time in connection with the transactions contemplated
herein.
(b) Gold Banc shall pay all of its costs and expenses, including the
fees of attorneys, accountants, brokers and other advisors, incurred in
connection with the transactions contemplated herein (collectively, "Gold Banc
Expenses") from July 1, 2000 to August 31, 2000, and QuickShip shall pay all
Gold Banc Expenses incurred prior to July 1, 2000 and all reasonable attorneys'
fees included in Gold Banc Expenses that were actually incurred from and after
September 1, 2000, provided that such amounts are included in the Payoff Amount
set forth on Exhibit E.
(c) Except (i) to the extent included in the Payoff Amount and (ii) for
approximately $70,000 ($45,000, if William Blair & Company agrees to reduce its
fees payable as a result of the Merger by $25,000) to Seigfreid, Bingham, Levy,
Selzer & Gee, P.C., which amount represents fees and expenses incurred by
QuickShip on or prior to April 14, 2000, Brandtonies will pay all of QuickShip's
costs and expenses, including the fees of attorneys, accountants, brokers and
other advisors, incurred at any time in connection with the transactions
contemplated herein.
9.2 Disclosure
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Except as and to the extent required by applicable securities, bank
regulatory or other laws or regulations promulgated thereunder, neither
Brandtonies nor QuickShip or Gold Banc shall, and each shall direct its
representatives not to, directly or indirectly, make any public announcement of,
or otherwise disclose or permit the disclosure of, the parties' negotiations,
the execution of this Agreement or any of the terms, conditions or other aspects
of the transactions proposed herein without the prior written consent of Blue
Rhino. To the extent Gold Banc determines that disclosure is required by
applicable laws or regulations governing banks and their holding companies, it
shall give reasonable prior notice to Blue Rhino and shall consult with Blue
Rhino as to the form and substance of such disclosure.
9.3 Confidentiality
Except to the extent required by applicable securities or other laws or
regulations promulgated thereunder, none of the parties shall disclose or use,
and each party shall direct its representatives not to disclose or use, any
Confidential Information (as defined below) with respect to the other party
furnished, or to be furnished, in connection herewith at any time or in any
manner, other than in connection with the transactions contemplated hereby. To
the extent Gold Banc determines that disclosure of Confidential Information is
required by applicable laws or regulations governing banks and their holding
companies, it shall give reasonable prior notice to Blue Rhino and shall consult
with Blue Rhino as to the form and substance of such disclosure. For purposes of
this Section 9.3, "CONFIDENTIAL INFORMATION" means any information identified as
confidential or that should reasonably be considered to be confidential;
provided that it does not include information that (i) is generally available to
or known by the public other than as a result of improper disclosure or (ii) is
obtained from a source not bound by a duty of confidentiality with respect to
such information. If the Merger is not consummated, each party shall promptly
return to the other any Confidential Information in its possession and any and
all documents, statements or other written information obtained from the other
that contain Confidential Information. Each party acknowledges and agrees that
(x) the provisions of this Section 9.3 are necessary for the protection of the
Confidential Information, and the business and goodwill, competitive position,
and legitimate business interests of the other parties, (y) such provisions are
reasonable for such purposes and (z) any breach of any covenant contained in
this Section 9.3 will cause irreparable injury and damage to the other parties,
as to which money damages alone would not be sufficient compensation.
Accordingly, each party consents, in the event of any breach of the covenants
contained in this Section 9.3, to the granting of preliminary and permanent
injunctive relieve against any continuing breach, in addition to and not in
limitation of any other rights, remedies, or damages available to the other
party at law or in equity.
9.4 Amendment
Any waiver, amendment, modification or supplement of or to any term or
condition of this Agreement shall be in writing, and the parties hereby waive
the right to amend the provisions of this Section 9.4 orally.
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9.5 Counterparts
This Agreement may be executed in two or more counterparts, each of
which will be deemed to be an original and all of which, when taken together,
will be deemed to constitute one and the same document.
9.6 Notices
All notices, demands and other communications made hereunder shall be
in writing and shall be given either by personal delivery or, by nationally
recognized overnight courier (with charges prepaid), and shall be deemed to have
been given or made when personally delivered, or the day following the date
deposited with such overnight courier service, addressed to the respective
parties at the following addresses (or such other address for a party as shall
be specified by like notice):
If to Brandtonies or to QuickShip:
Mr. Thomas E. Brandtonies
QuickShip, Inc.
8244 Melrose Drive
Lenexa, Kansas 66214
With a copy (which shall not constitute notice) to:
Seigfreid, Bingham, Levy, Selzer & Gee, P.C.
2800 Commerce Tower
911 Main Street
Kansas City, Missouri 64105
Attention: Robert C. Levy, Esq.
If to Blue Rhino or to Acquisition Sub:
Blue Rhino Corporation
100 Cambridge Park Drive
Winston-Salem, North Carolina 27104
Attention: Billy D. Prim, Chief Executive Officer
With a copy (which shall not constitute notice) to:
Womble Carlyle Sandridge & Rice, PLLC
200 West Second Street
Winston-Salem, North Carolina 27102
Attention: Peter A. Zorn, Esq.
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If to Gold Banc or Gold Bank:
Gold Banc Corporation, Inc.
11301 Nall Avenue
Leawood, Kansas 66211
Attention: Malcolm M. Aslin, President
With a copy (which shall not constitute notice) to:
Stinson, Mag & Fizzell, P.C.
1201 Walnut Street, Suite 2800
Kansas City, Missouri 64106
Attention: Michael W. Lochmann, Esq.
9.7 Third Party Beneficiaries
None of the provisions of this Agreement or any document contemplated
by this Agreement is intended to grant any right or benefit to any person or
entity that is not a party to this Agreement.
9.8 Governing Law
The parties intend that this Agreement and the performance hereunder
and all suits and special proceedings hereunder shall be construed in accordance
with and under and pursuant to the laws of the State of Delaware (except to the
extent federal law may be applicable) without regard to the principles of
conflicts of laws thereof and that in any action or other proceeding that may be
brought arising out of, in connection with, or by reason of this Agreement, the
laws of the State of Delaware shall be applicable and shall govern to the
exclusion of the law of any other forum. The parties further agree that any such
action or special proceeding must be instituted in North Carolina.
9.9 Release; Further Assurances
(a) As of the date on which payment in full of the Payoff Amount occurs
(the "PAYOFF DATE"), each of Gold Banc and Gold Bank hereby: (i) irrevocably and
unconditionally releases and forever discharges Blue Rhino, and its subsidiaries
and affiliates, agents, employees, representatives, officers, directors,
stockholders, trustees and attorneys, past and present, and any individual or
entity engaged to assist or advise any of the foregoing, and their heirs,
successors and assigns (collectively referred to as the "BLUE RHINO RELEASEES"),
from any and all claims, demands, actions or causes of action, suits, judgments
or controversies of any kind whatsoever (collectively "CLAIMS") against any of
the Blue Rhino Releasees, that now exist or that may arise in the future out of
any matter, transaction, or event related, directly or indirectly, to the Gold
Banc Loans or any of the Gold Banc Loan Agreements, which release shall survive
and continue after consummation of the Merger; provided, however, that the
foregoing shall not apply to any Claim that arises following the Payoff Date
pursuant to any of the following documents: (A) this
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Agreement, (B) the Certificate of Designation, (C) the Stockholders Agreement,
(D) the Registration Rights Agreement, or (E) any transaction, opinion,
agreement or document specifically provided for under any of the documents set
forth in clauses (A)-(D); and (ii) agrees to execute and deliver all releases,
UCC termination statements and such other documents and instruments as Blue
Rhino may reasonably request to effect the transactions contemplated herein.
(b) As of the Payoff Date, each of QuickShip and Brandtonies hereby
irrevocably and unconditionally releases and forever discharges Gold Banc and
Gold Bank, and their respective subsidiaries and affiliates, agents, employees,
representatives, officers, directors, stockholders, trustees and attorneys, past
and present, and any individual or entity engaged to assist or advise any of the
foregoing, and their heirs, successors and assigns (collectively referred to as
the "LENDER RELEASEES"), from any and all Claims against any of the Lender
Releasees, that QuickShip or Brandtonies have, or may have had, against any of
the Lender Releasees arising out of, based upon or related to any act, action or
omission of any of the Lender Releasees that occurred or failed to occur prior
to the Payoff Date, which release shall survive and continue after consummation
of the Merger; provided, however, that the foregoing shall not apply to any
Claim arising out of, based upon or related to any act, action or omission of
any of the Lender Releasees that occurs or fails to occur following the Payoff
Date.
(c) As of the Payoff Date, each of Gold Banc and Gold Bank hereby
irrevocably and unconditionally releases and forever discharges Brandtonies and
QuickShip, and their respective subsidiaries and affiliates, agents, employees,
representatives, officers, directors, stockholders, trustees and attorneys, past
and present, and any individual or entity engaged to assist or advise any of the
foregoing, and their heirs, successors and assigns (collectively referred to as
the "QUICKSHIP RELEASEES") from any and all Claims against any of the QuickShip
Releasees that Gold Banc or Gold Bank have, or may have had, against any of the
QuickShip Releasees arising out of, based upon or related to any act, action or
omission of any of the QuickShip Releasees that occurred or failed to occur
prior to the Payoff Date, which release shall survive and continue after
consummation of the Merger; provided, however, that the foregoing shall not
apply to any Claim arising out of, based upon or related to any act, action or
omission of any of the QuickShip Releasees that occurs or fails to occur
following the Payoff Date.
(d) As of the Payoff Date, Blue Rhino irrevocably and unconditionally
releases and forever discharges the Lender Releasees from any and all Claims
against any of the Lender Releasees, that now exist or that may arise in the
future out of any matter, transaction, or event related, directly or indirectly,
to the Gold Banc Loans or any of the Gold Banc Loan Agreements, which release
shall survive and continue after consummation of the Merger; provided, however,
that the foregoing shall not apply to any Claim that arises following the Payoff
Date pursuant to any of the following documents: (A) this Agreement, (B) the
Certificate of Designation, (C) the Stockholders Agreement, (D) the Registration
Rights Agreement, or (E) any transaction, opinion, agreement or document
specifically provided for under any of the documents set forth in clauses
(A)-(D).
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9.10 Legal Fees
If any legal action or other proceeding is brought for the enforcement
of any of the rights or provisions of this Agreement, or because of an alleged
dispute, breach or default in connection with any of the provisions of this
Agreement, the successful or prevailing party shall be entitled to recover from
the losing party reasonable attorneys' fees and all other costs and expenses
incurred in that action or proceeding, in addition to any other relief to which
such party may be entitled.
9.11 Entire Agreement
This Agreement, including the documents and other writings referenced
herein or delivered pursuant hereto, contains the entire agreement between the
parties with respect to the transactions contemplated hereunder and thereunder
and supersedes all arrangements or understandings with respect thereto, written
or oral, entered into on or before the date hereof, except the Option Agreement
among the parties hereto dated August 7, 2000, which shall continue in full
force and effect in accordance with its terms.
9.12 Specific Performance
QuickShip acknowledges that the QuickShip Common Stock and the
QuickShip business and assets are unique, and that if QuickShip fails to
consummate the transactions contemplated by this Agreement such failure will
cause irreparable harm to Blue Rhino for which there will be no adequate remedy
at law, Blue Rhino shall be entitled, in addition to its other remedies at law,
to specific performance of this Agreement if QuickShip shall, without cause,
refuse to consummate the transactions contemplated by this Agreement.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be executed in counterparts by their duly
authorized officers, all as of the day and year first above written.
Witness:
/s/ Thomas E. Brandtonies
----------------------------------------------
/s/ Robert C. Levy Thomas E. Brandtonies
- ------------------------
QUICKSHIP, INC.
ATTEST:
By: /s/ Thomas E. Brandtonies
------------------------------------------
/s/ Robert C. Levy Thomas E. Brandtonies, President
- ------------------------
[SEAL] Attorney-in-Fact
QUICKSHIP ACQUISITION CORP.
ATTEST:
By: /s/ Billy D. Prim
------------------------------------------
/s/ Mark Castaneda Billy D. Prim, Chief Executive Officer
- ------------------------
[SEAL]
BLUE RHINO CORPORATION
ATTEST:
By: /s/ Billy D. Prim
------------------------------------------
/s/ Mark Castaneda Billy D. Prim, Chief Executive Officer
- ------------------------
[SEAL]
GOLD BANC CORPORATION, INC.
ATTEST:
By: /s/ Malcolm M. Aslin
------------------------------------------
/s/ Keither E. Bouchey Malcolm M. Aslin, President
- ------------------------
[SEAL]
GOLD BANK
ATTEST:
By: /s/ Jack Waters
------------------------------------------
/s/ Steve E. Ricter Jack Waters, President
- ------------------------
[SEAL]
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EXHIBIT B
The following sets forth the current Intellectual Property:
1. Compass service mark. Not registered. It is used as a service
mark.
2. QuickShip service mark. Not registered. It is used as a
service mark.
3. QuickShip and Compass software. Copyright applied for. The
company has applied for copyright protection on the software
code used by Compass and QuickShip.
4. QuickShip process patent applied for. The company has filed a
patent application on the process and screen content of the
QuickShip shipping system.
5. QuickShip and Compass proprietary software. 1.
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EXHIBIT D
1. Letter Agreement -- ss.ss. 12, 13 and 15 and Notice to Borrower
2. Workout and Loan Agreement -- ss.ss. 1, 8, 11, 12, 18(b), 18(c), 18(e),
18(f), 18(g), 18(j), 18(k), 18(l), 18(m), 18(n) and 18(o)
3. Loan Purchase Agreement - entire agreement
4. Inter-Creditor Agreement - entire agreement
5. Subordination Agreement - entire agreement
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EXHIBIT E
AMOUNTS PAYABLE PURSUANT TO SECTION 5.3(B)
Line of Credit (#81343):
Principal Amount Outstanding $3,175,823.24
Interest (variable) Prime Rate + 1/2% adjusted
daily (currently 10%)
Interest accrual per diem (at current rate) $882.17/day
Maturity Extended to September 30,
2000
Interest Payments Due Monthly; on 2nd day of the
month
Principal Payment Due At maturity
Late Payment Fee 5% of payment due
Late Fee Assessed If payment is not made
within 10 days of due date
Lease Line (#81407):
Principal Amount Outstanding $325,029.05
Interest Rate (variable) Prime + 1 1/2%, adjusted
daily (currently 11%)
Interest accrual per diem (at current rate) $99.31/day
Maturity Date Extended to September 30,
2000
Interest Payments Due Quarterly (July 7th,
October 7th, etc.)
Principal Payment Due At maturity
Late Payment Fee 5% of payment due
Late Fee Assessed If payment is not made
within 10 days of due date
Credit Cards:
548032480300329
Type Revolving Charge Card
Available Credit Limit $5,000
Outstanding Principal Varies daily
Interest Rate 13.65% per annum
Payment Terms Per cardholder agreement
5480334390200047
Type Revolving Charge Card
Available Credit Limit $20,000
Outstanding Principal Varies daily
Interest rate (variable) Prime rate + 3.9%
(currently 13.4%)
Payment Terms Per cardholder agreement
28
Gold Banc Legal Fees (payable by QuickShip):
Legal Fees through 3/31/00 $5,500.00
(paid by Gold Banc on 5/5/00)
Accrual of interest on Legal Fees since 5/5/00 $1.51/day
(at prime rate + 1/2%, currently 10%)
Legal Fees from 4/1/00 to 4/30/00 $32,072.36
(paid by Gold Banc on 6/8/00)
Accrual of interest on Legal Fees since 6/8/00 $8.79/day
(at prime rate + 1/2%, currently 10%)
Legal Fees from 5/1/00 to 5/31/00 $20,503.66
(paid by Gold Banc on 7/13/00)
Accrual of interest on Legal Fees since 7/13/00 $5.62/day
(at prime rate + 1/2%, currently 10%)
Legal Fees from 6/1/00 to 6/30/00 $16,217.11
(paid by Gold Banc on 8/3/00)
Accrual of interest on Legal Fees since 8/3/00 $4.45/day
(at prime rate + 1/2%, currently 10%)
Legal Fees from 9/1/00 to 10/25/00
Negotiated Late Payment Fee $50,000.00
Accrual of interest on Late Payment Fee since 6/30/00 $13.70/day
(at prime rate + 1/2%, currently 10%)