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EXHIBIT 9.1
BLUE RHINO CORPORATION
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
Dated as of October 25, 2000
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TABLE OF CONTENTS
PAGE
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I. DEFINITIONS; RULES OF CONSTRUCTION.........................................2
1.1 Capitalized terms used in this Agreement
have the meanings ascribed to them below:...................2
1.2 Rules of Construction.......................................2
II. BOARD OF DIRECTORS........................................................3
2.1 Election of Directors Generally.............................3
2.2 Vacancies...................................................3
2.3 Removal and Substitution of Directors.......................4
2.4 Expenses....................................................4
2.5 Insurance...................................................4
III. RIGHTS AND INFORMATION...................................................4
3.1 Financial Information.......................................4
3.2 Litigation..................................................5
3.3 Defaults....................................................5
3.4 Regulatory Filings..........................................5
3.5 Accountant's Reports........................................5
3.6 Miscellaneous...............................................5
3.7 Visitation and Observer Rights..............................6
IV. LIMITATIONS ON TRANSFERS OF STOCK.........................................6
4.1 Permitted Transfer..........................................6
4.2 Assignment of Co-Sale Rights................................6
4.3 Legend......................................................7
V. RIGHTS OF CO-SALE..........................................................7
5.1 General.....................................................7
5.2 Notice......................................................8
5.3 Prohibited Transfers........................................8
VI. MISCELLANEOUS.............................................................9
6.1 Duration of Agreement.......................................9
6.2 Severability................................................9
6.3 Entire Agreement............................................9
6.4 Successors and Assigns......................................9
6.5 Counterparts...............................................10
6.6 Fees and Expenses..........................................10
6.7 Specific Performance.......................................10
6.8 Notices....................................................10
6.9 Governing Law..............................................10
6.10 Further Assurances.........................................10
6.11 Amendment..................................................11
6.12 Waiver.....................................................11
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AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated as of
October 25, 2000 (the "Agreement"), is by and among Blue Rhino Corporation, a
Delaware corporation (the "Company"), the undersigned holders of the Common
Stock, par value .001 per share (the "Common Stock"), of the Company set forth
on Schedule A attached hereto (the "Founders"), the holders of shares of Series
A Preferred Stock (as defined below) set forth on Schedule B attached hereto
(collectively, the "Investors") and the holders of shares of Series A Preferred
Stock (as defined below) set forth on Schedule C attached hereto (collectively,
the "QuickShip Stockholders" and, together with the Founders and the Investors,
the "Stockholders").
RECITALS
A. The Investors have acquired 1,716,667 shares in the
aggregate of the Series A Convertible Preferred Stock, par value $.001 per share
(the "Series A Preferred Stock"), of the Company, pursuant to that certain
Series A Preferred Stock Purchase Agreement dated as of September 7, 2000 (the
"Purchase Agreement").
B. The Company, Gold Bank and the QuickShip Stockholders have
entered into that certain Agreement and Plan of Reorganization dated as of the
date hereof, pursuant to which the QuickShip Stockholders have acquired
466,666.33 shares of the Series A Preferred Stock.
C. The Company and Gold Banc Corporation, Inc., a Kansas
corporation and a QuickShip Stockholder ("Gold Banc"), have entered into that
certain Subscription Agreement dated as of the date hereof, pursuant to which
Gold Banc has acquired 666,666.67 shares of the Series A Preferred Stock.
D. Each of the Founders currently owns that number of shares
of the Common Stock, as set forth next to his or her respective name on Schedule
A.
E. It is deemed to be in the best interest of the Company and
the Stockholders that provision be made for the continuity and stability of the
business and policies of the Company, and, to that end, the Company and the
Stockholders hereby set forth their agreement with respect to the capital stock
of the Company owned by them.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and other consideration, the receipt and adequacy of which hereby is
acknowledged, the parties agree as follows:
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I.
Definitions; Rules of Construction.
1.1 Capitalized terms used in this Agreement have the meanings ascribed
to them below:
"Cahill Warnock" means Cahill, Warnock Strategic Partners Fund
II A, L.P., a Delaware limited partnership, and Cahill, Warnock Strategic
Partners Fund II B, L.P., a Delaware limited partnership.
"Common Stock Equivalent" means a share of Common Stock or the
right to acquire, whether or not immediately exercisable, a share of Common
Stock, whether evidenced by an option, warrant, convertible security or other
instrument or agreement.
"Person" shall be construed broadly and shall include, without
limitation, an individual, a partnership, an investment fund, a limited
liability company, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
"Securities" means shares of the Company's Common Stock issued
or issuable upon conversion of the Series A Preferred Stock of the Company
whether or not authorized on the date hereof, and rights, options or warrants to
purchase Common Stock or Series A Preferred Stock and securities of any type
whatsoever that are, or may become, convertible into Common Stock or Series A
Preferred Stock.
"Subsidiary" means any other Person (i) whose Securities
having a majority of the general voting power in electing the board of directors
or equivalent governing body of such other Person (excluding Securities entitled
to vote only upon the failure to pay dividends thereon or the occurrence of
other contingencies) are, at the time as of which any determination is being
made, owned by such Person either directly or indirectly through one (1) or more
other entities constituting Subsidiaries or (ii) more than a fifty percent (50%)
interest in the profits or capital of whom is, at the time as of which any
determination is being made, owned by such Person either directly or indirectly
through one (1) or more other entities constituting Subsidiaries.
"Transfer" shall be construed broadly and shall include any
transfer (whether voluntary, involuntary or by operation of law) of Securities
or any interest therein, including without limitation, by way of issuance, sale,
participation, pledge, hypothecation, gift, bequeath, intestate transfer,
distribution, liquidation, merger or consolidation in each case, to any Person
other than the Company.
1.2 Rules of Construction.
(a) The use in this Agreement of the term "including" means
"including, without limitation." The words "herein," "hereof," "hereunder" and
other words of similar import refer to this Agreement as a whole, including the
exhibits, as the same may from time to time be amended or supplemented, and not
to any particular section, subsection, paragraph,
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subparagraph or clause contained in this Agreement. All references to sections
and exhibits mean the sections of this Agreement and the exhibits attached to
this Agreement.
(b) The title of and the section and paragraph headings in
this Agreement are for convenience of reference only and shall not govern the
interpretation of any of the terms or provisions of this Agreement.
(c) The use herein of the masculine, feminine or neuter forms
shall also denote the other forms, as in each case the context may require.
(d) Where specific language is used to clarify by example a
general statement contained herein, such specific language shall not be deemed
to modify, limit or restrict in any manner the construction of the general
statement to which it relates. The language used in this Agreement has been
chosen by the parties to express their mutual intent. If an ambiguity or
question of intent or interpretation arises, then this Agreement will be
construed as if drafted jointly by the parties to this Agreement, and no
presumption or burden of proof will arise favoring or disfavoring any party to
this Agreement by virtue of the authorship of any of the provisions of this
Agreement.
II.
Board of Directors.
2.1 Election of Directors Generally. From and after the date of this
Agreement and until the provisions of this Article II cease to be effective,
each of the Stockholders shall vote, or cause the vote of, all shares of Common
Stock, Series A Preferred Stock and other voting securities of the Company over
which such Stockholder has voting control, and will take all other necessary or
desirable actions within his, her or its control (whether in his, her or its
capacity as a stockholder, director or officer of the Company or otherwise) in
order to ensure that the size of the Board of Directors (the "Board") shall be
no less than nine (9) and to cause the election to the Board of one (1) designee
of Cahill, Warnock Strategic Partners Fund II A, L.P. ("Cahill, Warnock Fund II
A") for as long as Cahill, Warnock Fund II A or an affiliate thereof holds a
majority of the Series A Preferred Stock. David L. Warnock shall initially serve
as the designee of Cahill, Warnock Fund II A.
With respect to any remaining members of the Board of
Directors authorized by the Company's bylaws or certificate of incorporation,
the Company hereby agrees to take such actions as are necessary, and the
Stockholders agree to vote his, her or its shares of Common Stock and Series A
Preferred Stock of the Company (and any other shares of the capital stock of the
Company over which he, she or it exercises voting control) and take such other
actions as are necessary, so as to elect and thereafter continue in office as
directors of the Company such individuals who may be nominated by the Board.
2.2 Vacancies. In the event that any representative designated as
provided in Section 2.1 above for any reason ceases to serve as a member of the
Board during his or her term of office, the Stockholders shall take such actions
as are necessary and within their power to cause the resulting vacancy to be
filled by a representative designated as provided in Section 2.1.
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Each of the Stockholders shall attend, and vote its shares of the voting stock
of the Company in accordance with this Agreement at, each annual meeting of the
stockholders of the Company and each special meeting of the stockholders of the
Company involving the election of directors of the Company.
2.3 Removal and Substitution of Directors. No party hereto shall vote
for the removal of a director nominated and elected pursuant to Section 2.1 of
this Agreement, and no such vote shall be effective, unless the holders of a
majority of the outstanding Series A Preferred Stock, voting among themselves
shall specify. The Company hereby agrees to take such actions as are necessary,
and the Stockholders agree to vote his, her or its shares of Common Stock and
Series A Preferred Stock of the Company (and any other shares of the capital
stock of the Company over which he, she or it exercises voting control) and take
such other actions as are necessary, for the removal of any director nominated
and elected pursuant to Section 2.1 upon the request of the holders of a
majority of the outstanding shares of Series A Preferred Stock and for the
election to the Board of a substitute designated by such holders in accordance
with the provisions of Sections 2.1.
2.4 Expenses. The Company shall pay the reasonable out-of-pocket
expenses incurred by each Board member designated pursuant to Section 2.1 in
connection with attending the meetings of the Board and any committees thereof.
2.5 Insurance. The Company shall maintain its current directors' and
officers' liability insurance policy, or policies of at least the same coverage
containing terms and conditions which are not, in the aggregate, materially less
favorable.
III.
Rights and Information.
3.1 Financial Information. The Company will furnish the following
reports to each Investor and to Gold Banc:
(a) as soon as practicable after the end of each fiscal year
of the Company, and in any event within 90 days thereafter, a
consolidated balance sheet of the Company and its Subsidiaries as at
the end of such fiscal year, and consolidated statements of income and
cash flows of the Company and its Subsidiaries for such year, prepared
in accordance with generally accepted accounting principles
consistently applied, all in reasonable detail and audited by an
independent public accountant of recognized national standing selected
by the Company;
(b) as soon as practicable after the end of each fiscal
quarter and in any event within 45 days thereafter, a consolidated
balance sheet of the Company and its Subsidiaries as of the end of each
quarterly period, and consolidated statements of income and cash flows
of the Company and its Subsidiaries prepared in accordance with
generally accepted accounting principles consistently applied, subject
to changes resulting from year-end audit adjustments and the absence of
notes, all in reasonable detail and certified by the principal
financial or accounting officer of the Company;
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(c) as soon as practicable after the end of each month and in
any event within 30 days thereafter, a consolidated balance sheet of
the Company and its Subsidiaries as of the end of each monthly period,
and consolidated statements of income and cash flows of the Company and
its Subsidiaries for such period, prepared in accordance with generally
accepted accounting principles consistently applied, subject to changes
resulting from year-end audit adjustments and the absence of notes, all
in reasonable detail and certified by the principal financial or
accounting officer of the Company;
(d) as soon as practicable after its presentment to the Board
but in no event less than 30 days prior to the end of a fiscal year, an
annual financial plan and budget of the Company, which financial plan
and budget shall have been approved by the Board and shall provide
projections of the Company's monthly financial statements for the
forthcoming fiscal year.
(e) as soon as practicable after the end of each month, an
executive summary of the activities of the Company including, without
limitation, marketing, financial, product development and support and
other material activities.
3.2 Litigation. Within ten days after the Company learns of the filing
or commencement, or receives a written threat of commencement or filing, of any
material litigation or proceeding against the Company, or any of its respective
assets, the Company will provide the Investors and Gold Banc with written notice
of the nature and extent of such litigation or proceeding.
3.3 Defaults. Within ten days after the receipt by the Company of
written notice of a default by the Company under any material contract,
agreement or document to which the Company is a party or by which it is bound,
the Company will provide the Investors and Gold Banc with written notice of the
nature and extent of such default.
3.4 Regulatory Filings. Within ten days after filing, copies of all
reports filed by the Company pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, shall be furnished or made
available in electronic form to the Investors and Gold Banc, and promptly upon
the request of any Investor or Gold Banc, the Company shall furnish or make
available in electronic form to such Investor or Gold Banc, as the case may be,
copies of any press releases and other documents that the Company shall have
released to the press during the preceding 90 days.
3.5 Accountant's Reports. Promptly upon becoming available, the Company
shall furnish to the Investors and to Gold Banc copies of all reports prepared
for or delivered to the management of the Company by its outside accountants.
3.6 Miscellaneous. Promptly, from time to time, the Company shall
furnish to the Investors or Gold Banc, as the case may be, such other
information (in writing if so requested) regarding the assets and properties and
operations, business affairs and financial condition of the Company as any
Investor or Gold Banc may reasonably request.
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3.7 Visitation and Observer Rights. In addition to any rights of
inspection afforded stockholders by statute or otherwise, the Company shall
permit each Investor and Gold Banc to visit and inspect the Company's
properties, to examine its books of account and records and to consult with and
advise its officers with respect to the Company's affairs, finances and
accounts, all at such reasonable times and upon reasonable advance notice as may
be as may be requested by such holder.
IV.
Limitations on Transfers of Stock.
4.1 Permitted Transfer. For purposes of this Agreement, a "Permitted
Transfer" shall mean:
(a) Any repurchase of Common Stock by the Company pursuant to
a right of repurchase upon the termination of the transferring Stockholder's
employment or consulting relationship with the Company;
(b) Any bona fide gift to a charitable organization;
(c) Any transfer to the transferring Stockholder's affiliate
(including, without limitation, a wholly owned (either directly or through an
unbroken chain of entities each of which is wholly owned) subsidiary of such
Stockholder), ancestor, descendant, sibling or spouse or to a trust for their
benefit or a partnership that is owned entirely by the transferring
Stockholder's ancestors, descendants, siblings or spouse; or
(d) Any distribution of securities without consideration to
the general or limited partners or retired partners of a transferring
Stockholder that is a partnership or the members of a transferring Stockholder
that is a limited liability company or any Person that directly or indirectly,
through one or more intermediaries, Controls, or is Controlled by, or is under
common Control with the general partner of Cahill Warnock or any partnership or
limited liability company in which the general partner of Cahill Warnock is a
general partner or managing member, respectively. The term "Control" includes,
without limitation, the possession, directly or indirectly, of the power to
direct the management and policies of a Person, whether through the ownership of
voting securities, by contract or otherwise.
(e) provided, in each case, that the pledgee, transferee or
donee (each a "Permitted Transferee") shall furnish the Company and the
Stockholders with a written agreement to be bound by and comply with all
provisions of this Agreement.
4.2 Assignment of Co-Sale Rights. The co-sale rights set forth in
Article V may be assigned (but only with all related obligations) only to a
Permitted Transferee or to a transferee or assignee of at least 500,000
Securities (or all of such Other Stockholder's (as defined below) Securities, if
less), provided that (i) the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the Securities with respect to which such co-sale
rights are being assigned, and (ii) such transferee agrees in writing to be
bound by the provisions of this Agreement.
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4.3 Legend. Each certificate evidencing Securities and each certificate
issued in exchange for or upon the Transfer of the Securities (if such shares
remain subject to this Agreement after such Transfer) shall be stamped or
otherwise imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO A STOCKHOLDERS AGREEMENT, DATED AS OF SEPTEMBER 7,
2000, AS AMENDED OR RESTATED, AMONG THE ISSUER OF SUCH
SECURITIES (THE "COMPANY") AND CERTAIN OF THE COMPANY'S
STOCKHOLDERS. THE TERMS OF SUCH STOCKHOLDERS' AGREEMENT
INCLUDE, AMONG OTHER THINGS, VOTING AGREEMENTS AND
RESTRICTIONS ON TRANSFERS. A COPY OF SUCH STOCKHOLDERS'
AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO
THE HOLDER HEREOF UPON WRITTEN REQUEST."
The Company shall imprint such legends on the Founders' certificates evidencing
shares outstanding prior to the date hereof or issued hereafter upon the
exercise of any Common Stock Equivalent. The legend set forth above shall be
removed from the certificates evidencing any shares that cease to be Securities
subject to this Agreement.
V.
Rights of Co-Sale.
5.1 General.
(a) In the event that Billy D. Prim or Andrew J. Filipowski or
any immediate family members identified in Schedule D attached hereto (each
hereinafter in this Article V referred to in such capacity as a "Co-Sale
Offeror") proposes to sell, assign, pledge or in any manner (other than a
Permitted Transfer) at least twenty-five percent (25%) of the aggregate Common
Stock Equivalents held by such Co-Sale Offeror and its Affiliates, whether
voluntarily or by operation of law or by a gift or otherwise, such Co-Sale
Offeror shall promptly forward a notice (the "Co-Sale Notice") complying with
Section 5.2 to the Company and to the Investors who are not Founders and to the
QuickShip Stockholders (collectively, the "Other Stockholders").
(b) Each Other Stockholder may sell all or any part of that
number of Securities equal to the product obtained by multiplying (i) the
aggregate number of Common-Stock Equivalents that the proposed transferee (the
"Co-Sale Offeree") proposes to purchase by (ii) a fraction, the numerator of
which is the number of Common Stock Equivalents owned by such Other Stockholder
on the date of the Co-Sale Notice and the denominator of which is the total
number of Common Stock Equivalents owned on the date of the Co-Sale Notice by
the Co-Sale Offeror and each Other Stockholder who has validly exercised its
co-sale rights under this Article V with respect to the proposed transfer.
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5.2 Notice. The Co-Sale Notice shall set forth (i) the number of shares
of Common Stock and/or Common Stock Equivalents to which the Co-Sale Offer
relates, (ii) the name and address of the Co-Sale Offeree, (iii) the proposed
amount and type of consideration payable for the Common Stock and/or Common
Stock Equivalents and the terms and conditions of payment offered by the Co-Sale
Offeror and (iv) that the Co-Sale Offeree has been informed of the co-sale
rights provided for in this Article VI, and has agreed to purchase shares of
Securities held by the Other Stockholders in accordance with the terms of this
Article V. Upon receipt of a Co-Sale Notice, each Other Stockholder may elect to
exercise its co-sale rights to sell Securities to the Co-Sale Offeree on the
terms set forth in the Co-Sale Notice at any time within twenty (20) days by
delivering a written notice of acceptance (the "Co-Sale Notice of Acceptance")
that sets the number of Common Stock Equivalents (up to the maximum amount set
forth in Section 5.1(b)) that the Other Stockholder wishes to sell. Upon
expiration of the 20-day period, the Co-Sale Offeror will use reasonable efforts
to convince the Co-Sale Offeree to purchase all the Common Stock Equivalents
that he and the Other Stockholders are interested in selling, provided that to
the extent that any Co-Sale Offeree refuses to purchase all of the Common Stock
Equivalents that the Other Stockholders have indicated on the Co-Sale Notice of
Acceptance that they desire to sell, the Co-Sale Offeror shall not sell to such
Co-Sale Offeree any Securities unless and until, simultaneously with such sale,
the Co-Sale Offeror shall purchase such Securities from such Other Stockholders
in an amount not less than their pro rata right as set forth in Section 5.1(b)
and for the same consideration and on the same terms and conditions as the
proposed transfer described in the Co-Sale Notice.
5.3 Prohibited Transfers.
(a) In the event any Co-Sale Offeror should transfer any
Securities in contravention of the co-sale rights of the Other Stockholders as
set forth in this Article V (a "Prohibited Transfer"), to the extent such
transfer is valid and recorded on the books of and recognized by the Company,
the Other Stockholders, in addition to such other remedies as may be available
at law, in equity or hereunder, shall have the put option provided below, and
such Co-Sale Offeror shall be bound by the applicable provisions of such option.
The Other Stockholders may transfer any of their respective shares of Series A
Preferred Stock at any time without limitation, so long as the transfer is in
compliance with applicable securities laws and, to the extent co-sale rights are
to be assigned as part of such transfer, with the provisions of Article IV
hereof.
(b) In the event of a Prohibited Transfer, each Other
Stockholder shall have the right to sell to the Co-Sale Offeree the type and
number of shares of Common Stock equal to the number of shares each Other
Stockholder would have been entitled to transfer to the Co-Sale Offeree above
had the Prohibited Transfer been effected pursuant to and in compliance with the
terms hereof. Such sale shall be made on the following terms and conditions:
(i) The price per share at which the shares are
to be sold to the Co-Sale Offeror shall be
equal to the price per share paid by the
Co-Sale Offeree to the Co-Sale Offeror in
the Prohibited Transfer.
(ii) Within sixty (60) days after the later of
the dates on which the Other Stockholder (A)
received notice of the Prohibited Transfer
or (B) otherwise became aware of the
Prohibited Transfer, each
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Other Stockholder shall, if exercising the
option created hereby, deliver to the
Co-Sale Offeror the certificate or
certificates representing shares to be sold,
each certificate to be properly endorsed for
transfer.
(iii) The Co-Sale Offeror shall, upon receipt of
the certificate or certificates for the
shares to be sold by an Other Stockholder
pay the aggregate purchase price therefor in
cash or by other means acceptable to the
Other Stockholder.
VI.
Miscellaneous
6.1 Duration of Agreement. This Agreement shall terminate upon the
conversion of all of the shares of Series A Preferred Stock except that the
rights and obligations of each Stockholder under this Agreement shall terminate
as to such Stockholder upon the Transfer of all shares of Securities owned by
such Stockholder in compliance with the terms and conditions of this Agreement
(but nothing shall relieve such Stockholder from a claim for damages for a
breach prior to such Transfer).
6.2 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, and such invalid, void or
otherwise unenforceable provision shall be null and void. It is the intent of
the parties, however, that any invalid, void or otherwise unenforceable
provisions be automatically replaced by other provisions which are as similar as
possible in terms to such invalid, void or otherwise unenforceable provisions
but are valid and enforceable to the fullest extent permitted by law.
6.3 Entire Agreement. This document embodies the complete agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way, including without limitation the
Stockholders Agreement among the Company, the Founders and the Investors dated
September 7, 2000.
6.4 Successors and Assigns. Except as otherwise provided herein, this
Agreement will bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and subsequent
holder of Securities and the respective successors and permitted assigns of each
of them, so long as they hold Securities. None of the provisions hereof shall
create, or be construed or deemed to create, any right to employment in favor of
any Person by the Company or any of its Subsidiaries. This Agreement is not
intended to create any third party beneficiaries.
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6.5 Counterparts. This Agreement may be executed simultaneously in two
(2) or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same agreement.
6.6 Fees and Expenses. The parties hereto agree that if any parties
seek to resolve any dispute arising under this Agreement pursuant to a legal
proceeding, the prevailing parties to such proceeding shall be entitled to
receive reasonable fees and expenses (including reasonable attorneys' fees and
expenses) incurred in connection with such proceedings.
6.7 Specific Performance. It is acknowledged that it will be impossible
to measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the event
of any such failure, an aggrieved Person will be irreparably damaged and will
not have an adequate remedy at law. Any such person shall, therefore, in
addition to all remedies at law, be entitled to injunctive relief, including
specific performance, to enforce such obligations, and if any action should be
brought in equity to enforce any of the provisions of this Agreement, none of
the parties hereto shall raise the defense that there is an adequate remedy at
law.
6.8 Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given (a) when delivered personally to
the recipient, (b) one (1) business day after being sent by reputable overnight
courier (charges prepaid) (regardless of whether the recipient refuses to accept
delivery), (c) five (5) business days after being sent to the recipient by
certified or registered mail, return receipt requested and postage prepaid
(regardless of whether the recipient refuses to accept delivery) or (d) when
sent to the recipient by facsimile (followed promptly by personal, courier or
certified or registered mail delivery). The Company's address is:
Blue Rhino Corporation
104 Cambridge Plaza Drive
Winston-Salem, NC 27104
Attention: President
Telecopy: 336-659-6750
The address for each Stockholder shall be as set forth in the
stock records of the Company or shall be such other address that such
Stockholder may provide by written notice to the Company.
6.9 Governing Law. All questions concerning the construction,
interpretation and validity of this Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Delaware without giving
effect to any choice or conflict of law provision.
6.10 Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments, and
documents as any other party hereto reasonably may request in order to carry out
the provisions of this Agreement and the consummation of the transactions
contemplated hereby.
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6.11 Amendment. Except as expressly set forth herein, the provisions of
this Agreement may only be amended, waived or terminated with the prior written
consent of the Company, holders of a majority of the Common Stock held by the
Founders and holders of a majority of the then outstanding Series A Preferred
Stock. Any amendment or waiver effected in accordance with this paragraph shall
be binding upon the Company, each Founder, each QuickShip Stockholder, each
Investor and their respective successors and assigns. Notwithstanding the
foregoing, no amendment to this Agreement shall be effective with respect to any
holder of Series A Preferred Stock that is adversely affected by such amendment
in its status as such in a manner substantively different from the manner in
which all other holders of Series A Preferred Stock are affected and that
withholds its written consent thereto.
6.12 Waiver. No course of dealing between the Company, its Subsidiaries
and the Stockholders (or any of them) or any delay in exercising any rights
hereunder will operate as a waiver of any rights of any party to this Agreement.
The failure of any party to enforce any of the provisions of this Agreement will
in no way be construed as a waiver of such provisions and will not affect the
right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
* * * * *
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IN WITNESS WHEREOF, the undersigned have duly executed this
Amended and Restated Stockholders Agreement as of the date first written above.
BLUE RHINO CORPORATION
By: /s/ Billy D. Prim
-----------------------------------------
Name: Billy D. Prim
Title: President and Chief Executive Officer
CAHILL, WARNOCK STRATEGIC PARTNERS FUND II A, L.P.
By: Cahill, Warnock Strategic Partners II, LLC,
its General Partner
By: /s/ David L. Warnock
----------------------------------------------
Name: David L. Warnock
Title: Managing Member
CAHILL, WARNOCK STRATEGIC PARTNERS FUND II B, L.P.
By: Cahill, Warnock Strategic Partners II, LLC,
its General Partner
By: /s/ David L. Warnock
----------------------------------------------
Name: David L. Warnock
Title: Managing Member
15
/s/ Billy D. Prim
---------------------------------------------
Billy D. Prim
/s/ Andrew J. Filipowski
---------------------------------------------
Andrew J. Filipowski
/s/ Richard P. Kiphart
---------------------------------------------
Dick Kiphart
/s/ Thomas E. Brandtonies
---------------------------------------------
Thomas E. Brandtonies
GOLD BANC CORPORATION, INC.
By: /s/ Malcolm M. Aslin
-----------------------------------------
Name: Malcolm M. Aslin
Title: President
16
SCHEDULE A
Billy D. Prim -- 1,257,844 Shares
Andrew J. Filipowski -- 1,812,373 Shares
17
SCHEDULE B
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
18
SCHEDULE C
Gold Banc Corporation, Inc.
Thomas E. Brandtonies
19
SCHEDULE D
Deborah Prim
Veronica Filipowski