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EXHIBIT 99
BLUE RHINO CORPORATION
AMENDED AND RESTATED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
This Amended and Restated Stock Option Plan for Non-employee Directors
amends and restates in its entirety as of December 30, 1998, that certain Stock
Option Plan for Non-employee Directors of Blue Rhino Corporation which was
originally effective on May 18, 1998.
SECTION 1. PURPOSE. The purpose of the Stock Option Plan for
Non-employee Directors (the "Plan") is to attract and retain persons of
exceptional ability to serve as members of the Board of Directors of Blue Rhino
Corporation (the "Company"), and to align the interests of the Company's
non-employee directors with that of the stockholders in enhancing the value of
the Company's capital stock.
SECTION 2. ADMINISTRATION . The Plan shall be administered by the
Compensation Committee (the "Committee") of the Board of Directors of the
Company (the "Board") or such successor committee of the Board that is
designated by the Board to administer the Plan (the "Administrator"). Such
Committee shall be composed of two or more Directors who meet the requirements
of Rule 16b-3(b)(3)(i) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or any successor rule. The Administrator shall have
responsibility finally and conclusively to interpret the provisions of the Plan
and to decide all questions of fact arising in its application. No member of the
Administrator shall be liable for any action or determination made in good faith
with respect to the Plan. The Administrator may delegate to an officer or
officers of the Company the authorization to execute and deliver on behalf of
the Company any document or instrument required to be delivered under this Plan.
SECTION 3. TYPE OF OPTIONS. Options granted pursuant to the Plan shall
be nonstatutory options which are not intended to meet the requirements of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
SECTION 4. ELIGIBILITY. Directors of the Company who are not employees
or officers of the Company ("Eligible Directors") and who are directors of the
Company on or after the date this Plan is approved by a majority of the
shareholders of the Company shall be eligible to participate in the Plan. Each
Eligible Director to whom stock options are granted shall be a participant
("Participant") under the Plan.
SECTION 5. SHARES AVAILABLE UNDER THE PLAN. Subject to adjustment as
provided in Section 10 below, an aggregate of 100,000 shares of the Company's
Common Stock, par value $0.001 (the "Common Stock") shall be available for
issuance pursuant to the provisions of the Plan. Such shares may be authorized
and unissued shares or may be shares issued and thereafter acquired by the
Company. If an option granted under the Plan shall expire or terminate for any
reason without having been exercised in whole or in part, the unpurchased shares
subject to such option shall again be available for subsequent option grants
under the Plan.
SECTION 6. AUTOMATIC GRANT OF OPTIONS.
(a) On December 30, 1998 each Eligible Director shall receive
options to purchase 8,000 shares of Common Stock and on an annual basis
hereafter on the day after the annual meeting of the stockholders of
the Company as designated in the notice of annual meeting of
stockholders, each Eligible Director of the Company on the Grant Date
shall receive options to purchase 4,000 shares of Common Stock. The
term "Grant Date" shall mean December 30, 1998 with respect to the
options granted on that date and the day after each subsequent annual
meeting of the stockholders with respect to the options granted on such
dates.
(b) In the event the Eligible Director fails to attend four
board meetings between the Grant Date and the date of the next annual
meeting of the stockholders of the Company, the Eligible Director shall
forfeit options to purchase 1,000 shares for each meeting less than
four which the Eligible Director attends; provided, however, that in
the event the Eligible Director fails to attend at least two board
meetings between the Grant Date and the date of the next annual
meeting, Eligible Director shall forfeit all options
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granted to him or her on the previous Grant Date. Participation by
conference telephone or by other telecommunications equipment will be
deemed attendance at a Board meeting for the purpose of receiving
options under this Plan.
SECTION 7. TERMS AND CONDITIONS OF OPTIONS.
7.1 Exercise of Options.
(a) Each option granted under the Plan shall be exercisable at
the rate of one-third (1/3) per year commencing on the first
anniversary of the Grant Date, subject to the provisions of Section 9
hereof.
(b) Notwithstanding the provisions of paragraph (a) above, an
option granted to any Participant shall become immediately exercisable
in full upon the first to occur of:
(i) the death of the Participant, in which case the
option may be exercised by the Participant's executor or
administrator, or if not so exercised, by the legatees or
distributees of his or her estate or by such other person or
persons to whom the Participant's rights under the option
shall pass by will or by the applicable laws of descent and
distribution;
(ii) such time as the Participant ceases to be a
director of the Company by reason of his or her permanent
disability;
(iii) such time as the Participant ceases to be a
director of the Company as a result of retirement from the
Board of Directors on or after attaining age 65; or
(iv) such time as a Participant ceases to be eligible
to participate in this Plan by reason of his or her becoming
an employee of the Company or any of its subsidiaries.
(c) In the event that the Participant ceases to be a director
of the Company for any reason other than those specified in paragraph
7.1(b) prior to the time a Participant's option becomes fully
exercisable, the option will terminate on the date the Participant
ceases to be a director of the Company with respect to the shares as to
which the option is not then exercisable without further notice or
action on the part of the Company.
(d) Options granted under the Plan shall expire ten years from
the date on which the option is granted, unless terminated earlier in
accordance with the Plan; provided, however, that in the event a
Participant ceases to be a director of the Company by reason of an
event described in Section 7.1(b)(i), any option granted to such
Participant hereunder shall expire 90 days from the date the
Participant ceases to be a director of the Company, but in no event
later than the day preceding the tenth anniversary of the date of the
grant of such option.
(e) In the event that the Participant ceases to be a director
of the Company other than for a reason described in Sections 7.1(b)(ii)
through (iv) and after his or her option has become exercisable in
whole or in part, such option shall remain exercisable in whole or in
part, as the case may be, in accordance with the terms hereof for a
period of 30 days from the date the Participant ceases to be a
director, but in no event later than the day preceding the tenth
anniversary of the date of grant of such option.
7.2 Exercise Price. The exercise price of each share of Common Stock
subject to an option shall be the "Fair Market Value" of a share of Common Stock
on the Grant Date of the option. "Fair Market Value" means the value determined
on the basis of the good faith determination of the Committee, without regard to
whether the Common Stock is restricted or represents a minority interest,
pursuant to the applicable method described below:
(a) if the Common Stock is listed on a national securities
exchange or quoted on The Nasdaq Stock Market ("NASDAQ"), the closing
price of the Common Stock on the relevant date, as reported by the
principal national exchange on which such shares are traded (in the
case of an exchange) or by the NASDAQ, as the case may be;
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(b) if the Common Stock is not listed on a national securities
exchange or quoted on the NASDAQ, but is actively traded in the
over-the-counter market, the average of the closing bid and asked
prices for the Common Stock on the relevant date, or the most recent
preceding date for which such quotations are reported; and
(c) if, on the relevant date, the Common Stock is not publicly
traded or reported as described in (a) or (b), the value determined in
good faith by the Committee.
7.3 Payment of Exercise Price; Tax Withholding..
(a) Subject to the terms and conditions of the Plan and the
documentation of the options pursuant to Section 7.5 hereof, an option
granted hereunder shall, to the extent then exercisable, be exercisable
in whole or in part by giving written notice to the Company's Secretary
stating the number of shares with respect to which the option is being
exercised, accompanied by payment in full for such shares.
(b) If approved by the Committee, payment in full or in part
may also be made (i) by delivering Common Stock already owned by the
Participant having a total Fair Market Value on the date of such
delivery equal to the Option Price; (ii) by authorizing the Company to
retain shares of Common Stock which would otherwise be issuable upon
exercise of the Option having a total Fair Market Value on the date of
delivery equal to the Option Price; (iii) by the delivery of cash by a
broker-dealer to whom the Participant has submitted a notice of
exercise (in accordance with Part 220, Chapter II, Title 12 of the Code
of Federal Regulations, so-called "cashless" exercise); or (iv) by any
combination of the foregoing. No shares of Common Stock will be issued
until full payment therefor has been made.
(c) The Participant shall pay the Company an amount sufficient
to cover withholding required by law for any federal, state, local or
foreign taxes, if any, in connection with an exercise of options
herewith. A Participant may elect in lieu of paying cash to deliver
shares of Common Stock or direct the Company that shares of Common
Stock be withheld to satisfy required tax withholding and such shares
shall be valued at the Fair Market Value as of the exercise date and
the Board shall determine the timing and other terms and conditions in
which the use of shares of Common Stock to satisfy tax withholding may
take place.
7.4 Rights as a Shareholder. No person will have any rights of a
stockholder as to shares of Common Stock subject to a Stock Option until, after
proper exercise of the Stock Option or other action required, such shares have
been recorded on the Company's official stockholder records as having been
issued or transferred. Upon exercise of the Stock Option or any portion thereof,
the Company will have thirty (30) days in which to issue the shares, and the
Participant will not be treated as a stockholder for any purpose whatsoever
prior to such issuance. No adjustment will be made for cash dividends or other
rights for which the record date is prior to the date such shares are recorded
as issued or transferred in the Company's official stockholder records, except
as provided herein or in an Option Agreement.
7.5 Documentation of Option Grants. Option grants shall be evidenced by
written instruments prescribed by the Board from time to time. The instruments
may be in the form of agreements to be executed by both the Participant and the
president or any vice president of the Company or in the form of certificates,
letters or similar instruments, which need not be executed by the Participant
but acceptance of which will evidence agreement to the terms of the grant.
7.6 Nontransferability of Options. Except as otherwise provided in this
Section 7.6, no option granted under the Plan shall be assignable or
transferable by the Participant to whom it is granted, either voluntarily or by
operation of law, except (a) by will or the laws of descent and distribution or
(b) during the lifetime of the Participant, to (i) the spouse or lineal
descendants of the Participant ("Immediate Family Members"), (ii) a trust or
trusts maintained for the exclusive benefit of the Participant and/or such
Immediate Family Members, or (iii) a limited partnership or limited liability
company in which the only partners or members are the Participant and/or such
Immediate Family Members, formed for estate planning purposes; provided, that
(y) the stock option agreement or any amendment thereto executed by the
Administrator pursuant to which such option is granted must
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expressly provide for the transferability in a manner consistent with this
Section, and (z) subsequent transfers of a transferred option shall be
prohibited (except as otherwise provided in this Section 7.6), and except that
distributions may be made to the Participant and/or such Immediate Family
members from trusts, family limited partnerships or family limited liability
companies described herein). Following a transfer permitted herein, any such
option shall continue to be subject to the same terms and conditions as were
applicable immediately prior to transfer, provided, that for the purposes of
Sections 7.3 and 7.4 of this Plan, the term "Participant" shall be deemed to
refer to the permitted transferee with respect of the options so transferred.
The events contained in Subsection 7.1(b) shall continue to be applied with
respect to the original Participant, and transferred options shall expire at or
after the date the original Participant ceases to be a director of the Company
as provided in Sections 7.1(c)-(d) and shall otherwise be exercisable by the
transferee only to the extent and for the periods specified in Sections 7.1 and
7.3.
7.7 Approvals. The effectiveness of the Plan and any options granted
hereunder are subject to the approval of the Plan by affirmative vote of a
majority of the shares of the Common Stock present in person or by proxy and
entitled to vote at an annual or special meeting of the stockholders or by
written consent as provided in the Company's charter or by-laws. In the event
that the Plan is not approved by the stockholders, the Plan and any options
granted hereunder shall be void as of no effect.
The Company's obligation to sell and deliver shares of Common Stock
under the Plan is subject to the approval of any governmental authority required
in connection with the authorization, issuance or sale of the Common Stock.
SECTION 8. REGULATORY COMPLIANCE AND LISTING.
(a) The issuance or delivery of any shares of stock subject to
exercisable options hereunder may be postponed by, the Board for such
period as may be required to comply with any applicable requirements
under Federal securities laws, any applicable listing requirements of
any national securities exchange or any requirements under any law or
regulation applicable to the issuance or delivery of such shares. The
Company shall not be obligated to issue or deliver any such shares if
the issuance or delivery thereof would constitute a violation of any
provision of any law or of any regulation of any governmental authority
or any rule of any national securities exchange.
(b) No discretion concerning decisions regarding the Plan
shall be afforded to a person who does not meet the requirements of
Section 16 of, and Rule 16b-3(b)(3)(i) of the Exchange. Should any
provision of this paragraph require modification or be unnecessary to
comply with the requirements of Section 16 of Rule 16b-3 under the 1934
Act, the Board may waive such provision and/or amend this Plan to add
to or modify the provisions hereof accordingly.
SECTION 9. CHANGE IN CONTROL. Notwithstanding anything to the contrary
in the Plan, the following shall apply to all outstanding options granted under
the Plan:
(a) Definitions - The following definitions shall apply to
this Section:
A "Change in Control" shall mean:
(i) The acquisition by any individual entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
1934 Act) or beneficial ownership (within the meaning of Rule
13d-3 promulgated under the 1934 Act) of 50% or more of the
combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Voting Securities");
provided, however, that the following acquisitions shall not
constitute a Change of Control: (A) any acquisition directly
from the Company or any of its subsidiaries, (B) any
acquisition by the Company or any of its subsidiaries, (C) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any of its
subsidiaries, (D) any acquisition by any corporation with
respect to which, following such acquisition, more than 50%
of, respectively, the then outstanding shares of common stock
of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then
beneficially owned,
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directly or indirectly, by individuals, entities or groups who
were the beneficial owners, respectively, of at least 50% of
the Outstanding Voting Securities immediately prior to such
acquisition in substantially the same proportions as their
ownership, immediately prior to such acquisition, of the
Outstanding Voting Securities, or (E) the acquisition by any
individual, entity or group which on the date this Plan was
adopted by the Board owned 50% or more of the Outstanding
Voting Securities.
(ii) Approval by the shareholders of the Company of a
reorganization, merger or consolidation, in each case, with
respect to which all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of
the Outstanding Voting Securities immediately prior to such
reorganization, merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially own,
directly or indirectly, more than 50% of the combined voting
power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may
be, of the corporation resulting from such reorganization,
merger or consolidation in substantially the same proportions
as their ownership, immediately prior to such reorganization,
merger or consolidation, of the Outstanding Voting Securities;
or
(iii) Approval by the shareholders of the Company of
(i) a complete liquidation or dissolution of the Company or
(ii) the sale or other disposition of all or substantially all
of the assets of the Company other than to a corporation, with
respect to which following such sale or other disposition,
more than 50% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power
for the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Voting
Securities immediately prior to such sale or other disposition
in substantially the same proportion as their ownership,
immediately prior to such sale or other disposition, of the
Outstanding Voting Securities.
"CIC Price" shall mean the higher of (1) the highest price
paid for a share of Common Stock in the transaction or series of
transactions pursuant to which a Change in Control of the Company shall
have occurred, or (2) the highest reported sales price of a share of
Common Stock during the 60 day period immediately preceding the date
upon which the event constituting a Change in Control shall have
occurred.
(b) Acceleration of Vesting and Payment of Stock Options.
(i) Upon the occurrence of an event constituting a
Change in Control, all stock options outstanding on such date
shall become 100% vested and shall be repurchased in cash to
the Participant as soon as may be practicable. Upon such
payment, such stock options shall be canceled.
(ii) The amount of cash to be paid shall be
determined by multiplying the number of such options by the
difference between the exercise price per share and the CIC
Price, if higher.
(iii) Notwithstanding the foregoing subsections (i)
and (ii), if the exercise price of a stock option exceeds the
CIC Price or the Fair Market Value on the Post-Termination
Date, as the case may be, such stock option shall be 100%
vested but shall not be canceled.
SECTION 10. ADJUSTMENT IN EVENT OF CHANGES IN CAPITALIZATION. In the
event of a stock dividend, stock split or combination of shares,
recapitalization or other change in the Company's capitalization, or other
distribution with respect to holders of the Common Stock (other than normal cash
dividends), automatic adjustment shall be made in the number and kind of shares
as to which outstanding options or portions thereof then unexercised shall be
exercisable and in the available shares set forth in Section 5 hereof, to the
end that the proportionate interest of the option holder shall be maintained as
before the occurrence of such event. Such adjustment in outstanding options
shall be made without change in the total price applicable to the unexercised
portion of such options and with a corresponding adjustment in the option price
per share. Automatic adjustment shall also be made in the number and kind of
shares subject to options subsequently granted under the Plan.
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SECTION 11. NO RIGHT TO REELECTION. Nothing in the Plan shall be deemed
to create any obligation on the part of the Board to nominate any Non-employee
Director for reelection by the Company's shareholders, nor confer upon any
Non-employee Director the right to remain a member of the Board for any period
of time, or at any particular rate of compensation.
SECTION 12. AMENDMENT AND TERMINATION.
(a) Except as provided in Section 8(b), the Board shall have
the right to amend, modify or terminate the Plan at any time and from
time to time; provided, however, that unless required by law, no such
amendment or modification shall (a) affect any right or obligation with
respect to any grant theretofore made; (b) in any manner affect the
requirements set forth in Section 8(b) hereof, or (c) unless previously
approved by the shareholders, increase the number of shares of Common
Stock available for grants as provided in Section 5 hereof other than
an adjustment pursuant to Section 10 hereof. In addition, no such
amendment shall, unless previously approved by the shareholders (where
such approval is necessary to satisfy then applicable requirements of
federal securities laws, the Code or rules of any stock exchange on
which the Company's Common Stock is listed) (i) in any manner affect
the eligibility requirements set forth in Section 4 hereof, (ii)
increase the number of shares of Common Stock subject to any option,
(iii) change the purchase price of the shares of Common Stock subject
to any option, (iv) extend the period during which options may be
granted under the Plan, or (v) materially increase the benefits to
Participants under the Plan.
(b) Unless earlier terminated by the Board of Directors, or
the shares reserved under the Plan shall have all been committed for
options granted pursuant to the Plan, the Plan shall terminate on
December 31, 2008; provided, however, that options which are granted on
or before this date shall remain exercisable in accordance with their
respective terms after the termination of the Plan.
SECTION 13. SUCCESSORS AND ASSIGNS. The Plan shall be binding on all
successors and permitted assigns of a Participant, including but not limited to,
the estate of such Participant and the executor, administrator or trustee of
such estate, the guardian or legal representative of the Participant.
SECTION 14. GOVERNING LAW. The validity, construction and effect of the
Plan and any action taken or relating to the Plan shall be determined in
accordance with the laws of the State of Delaware and applicable Federal law.
Adopted by the Board of Directors effective on May 18, 1998.
Approved by the written consent of the stockholders of the Company effective on
May 18, 1998.
Amended and Restated by the Board of Directors on December 30, 1998.
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2000 DECLARATION OF AMENDMENT TO
BLUE RHINO CORPORATION
AMENDED AND RESTATED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
THIS 2000 DECLARATION OF AMENDMENT, is made this 19th day of December,
2000, by BLUE RHINO CORPORATION (the "Corporation"), to the Corporation's
Amended and Restated Stock Option Plan for Non-Employee Directors (the "Director
Plan").
R E C I T A L S:
- - - - - - - -
WHEREAS, the Corporation has adopted, and the stockholders have
approved, the Director Plan; and
WHEREAS, pursuant to Section 12 of the Director Plan, the Board of
Directors of the Corporation has the authority to amend the Director Plan,
subject to stockholder approval in certain circumstances; and
WHEREAS, the Board of Directors of the Corporation has deemed it
advisable to amend Section 5 of the Director Plan to increase the number of
shares authorized for issuance under the Director Plan from 100,000 shares to
400,000 shares, subject to the approval of the stockholders of the Corporation
of such increase; and
WHEREAS, the Corporation desires to evidence such amendment by this
Declaration of Amendment.
NOW, THEREFORE, IT IS DECLARED that, effective as of December 19, 2000,
the Director Plan shall be and hereby is amended as follows (subject to
stockholder approval of such amendment):
1. Amendment to Section 5. Section 5 ("Shares Available Under the
Plan") shall be amended by deleting the first sentence of Section 5 and
inserting the following in lieu thereof:
"Subject to adjustment as provided in Section 10 below, an
aggregate of 400,000 shares of the Company's Common Stock, par value
$0.001 (the "Common Stock") shall be available for issuance pursuant to
the provisions of the Plan."
2. Continued Effect. Except as set forth herein, the Director Plan
shall remain in full force and effect.
[Signatures on next page.]
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IN WITNESS WHEREOF, this Declaration of Amendment is executed on behalf
of BLUE RHINO CORPORATION as of the day and year first above written.
BLUE RHINO CORPORATION
By: /s/ Billy D. Prim
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Billy D. Prim, President and
Chief Executive Officer
ATTEST:
/s/ Mark Castaneda
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Mark Castaneda, Secretary
[Corporate Seal]
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