SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BLUE RHINO CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 56-1870472
- ------------------------------- ----------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification Number)
104 Cambridge Plaza Drive
Winston-Salem, North Carolina 27104
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(Address of principal executive offices, including zip code)
BLUE RHINO CORPORATION
1998 STOCK INCENTIVE PLAN
(AS AMENDED)
-------------------------
(Full title of the plan)
Billy D. Prim
Chairman, President and Chief Executive Officer
Blue Rhino Corporation
104 Cambridge Plaza Drive
Winston-Salem, North Carolina 27104
(336) 659-6900
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(Name, address and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share (1) Price (1) Fee (1)
- ---------- ----------- -------------- -------------- --------------
Common Stock,
$0.001 par value 1,000,000 shares $5.75-$6.695 per share $6,222,005 $573
- ---------------------------------------------------------------------------------------------------------------
</Table>
(1) Pursuant to Rule 457(c) and (h)(1), based on (i) the average of the high
($7.19) and low ($6.20) sale prices of the Company's common stock (the
"Common Stock") on February 14, 2002, as reported on the Nasdaq National
Market (499,476 shares), and (ii) the average option price ($5.75) for
500,524 shares being registered herein which are available for issuance
upon exercise of outstanding options granted by the Company under the
Company's 1998 Stock Incentive Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Blue Rhino Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission") under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year
ended July 31, 2001, as filed with the Commission on October 9, 2001;
(b) The Company's Quarterly Report on Form 10-Q as filed with
the Commission on December 17, 2001;
(c) The Company's Current Report on Form 8-K/A, as filed with
the Commission on November 14, 2001;
(d) The description of the Common Stock that is contained in
the Company's registration statement on Form 8-A filed with the
Commission on May 19, 1998, including any amendment or report filed for
the purposes of updating the description;
(e) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year referred to in (a)
above.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
Pursuant to General Instruction E to Form S-8, the contents of
Registration Statement No. 333-80911 and Registration Statement No. 333-60368,
relating to the offer and sale of the Company's Common Stock under the Blue
Rhino Corporation 1998 Stock Incentive Plan, as amended, are incorporated by
reference in this Registration Statement on Form S-8.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the securities offered hereby has been passed
upon by the law firm of Womble Carlyle Sandridge & Rice, PLLC. Members of the
firm beneficially own approximately 1,000 shares of the Company's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the
"DGCL") authorizes indemnification of directors, officers, employees and agents
of the Company; allows the advancement of costs of defending against litigation;
and permits companies incorporated in Delaware to purchase insurance on behalf
of directors, officers, employees and agents against liabilities whether or not
in the circumstances such companies would have the power to indemnify against
such liabilities under the provisions of the statute. The Company's Second
Amended and Restated Certificate of Incorporation ("Charter") provides that the
Company will indemnify its directors and officers to the fullest extent
permitted by law.
Under the provisions of the Charter, any director or officer
who, in his or her capacity as such, is made or threatened to be made a party to
any suit or proceeding shall be indemnified if the Board of Directors
II-1
determines such director or officer acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The Company will not however
indemnify any director or officer where such director or officer: (a) breaches
his or her duty of loyalty to the Company or its stockholders; (b) fails to act
in good faith or engages in intentional misconduct or knowing violation of law;
(c) authorizes payment of an unlawful dividend or stock repurchase or
redemption; or (d) obtains an improper personal benefit. While liability for
monetary damages has been eliminated, equitable remedies such as injunctive
relief or rescission remain available. In addition, a director is not relieved
of his or her responsibilities under any other law, including the federal
securities laws.
Indemnification under the Charter and the Company's Amended
and Restated Bylaws ("Bylaws") includes payment by the Company of expenses in
defending an action, suit or proceeding in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by the
indemnified party to repay such advance if it is ultimately determined that such
person is not entitled to indemnification under the Charter, which undertaking
may be accepted without reference to the financial ability of such person that
makes such repayments. The Company is not responsible for the indemnification of
any person seeking indemnification in connection with a proceeding initiated by
such person unless the initiation was approved by the Board of Directors of the
Company. The Charter and the DGCL further provide that such indemnification is
not exclusive of any other rights to which such individuals may be entitled
under the Charter, the Bylaws, any agreement, any vote of stockholders or
disinterested directors, or otherwise. The Company carries directors and
officers insurance covering its executive officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as a part of this
Registration Statement:
Exhibit No. Description
- ----------- -----------
4.1 Form of Certificate of Common Stock of the Company (incorporated
by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-1 dated May 18, 1998)
4.2 Registration Rights Agreement among the Company and the
purchasers of Common Stock and Warrants dated September 7, 1999
(incorporated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K dated September 23, 1999)
4.3 Registration Rights Agreement among the Company and the Buyers of
its Convertible Notes dated September 20, 1999 (incorporated by
reference to Exhibit 4.2 to the Company's Current Report on Form
8-K dated September 23, 1999)
4.4 Amended and Restated Registration Rights Agreement, dated as of
March 1, 1997, among the Company, Forsythe/Lunn Technology
Partners, L.L.C., Platinum Propane Holding, L.L.C., the
Purchasers of Units pursuant to the Unit Purchase Agreement dated
October 11, 1995 and the Purchasers of the Company's Series A
Convertible Participating Preferred Stock (incorporated by
reference to Exhibit 10.15 to the Company's Registration
Statement on Form S-1 dated May 18, 1998)
4.5 Amendment to Amended and Restated Registration Rights Agreement
among the Company and certain holders of its Common Stock dated
September 7, 1999 (incorporated by reference to Exhibit 4.3 to
the Company's Current Report on Form 8-K dated September 23,
1999)
II-2
Exhibit No. Description
- ----------- -----------
4.6 Form of Warrant to Purchase Common Stock of the Company issued to
purchasers of the Company's Common Stock in its private offering
dated September 7, 1999 (incorporated by reference to Exhibit 4.4
to the Company's Current Report on Form 8-K dated September 23,
1999)
4.7 Form of Warrant to Purchase Common Stock of the Company issued to
purchasers of the Company's Convertible Notes on September 20,
1999 (incorporated by reference to Exhibit 4.5 to the Company's
Current Report on Form 8-K dated September 23, 1999)
4.8 Form of Warrant issued to Michael A. Waters dated September 17,
1999 (incorporated by reference to Exhibit 4.6 to the Company's
Current Report on Form 8-K dated September 23, 1999)
4.9 Registration Rights Agreement among the Company and the
shareholders and certain employees of Uniflame, Inc. dated March
31, 2000 (incorporated by reference to Exhibit 4.1 to the
Company's Current Report on Form 8-K dated April 18, 2000)
4.10 Form of Certificate of Series A Convertible Preferred Stock of
the Company (incorporated by reference to Exhibit 4.1(b) to the
Company's Annual report on Form 10-K for the year ended July 31,
2000)
4.11 Certificate of Designation, Rights and Preferences of Series A
Convertible Preferred Stock dated September 7, 2000 (incorporated
by reference to Exhibit 4.10 to the Company's Registration
Statement on Form S-3 dated September 25, 2000)
4.12 Certificate of Designation, Number of Authorized Shares of Series
A Convertible Preferred Stock dated October 25, 2000
(incorporated by reference to Exhibit 4.11 to the Company's
Annual Report on Form 10-K for the year ended July 31, 2000)
4.13 Amended and Restated Registration Rights Agreement among the
Company, certain Investors and the former stockholders of
QuickShip, Inc. dated October 25, 2000 (incorporated by reference
to Exhibit 4.12 to the Company's Annual Report on Form 10-K for
the year ended July 31, 2000)
4.14 Form of Warrant issued to Thomas E. Brandtonies dated October 26,
2000 (incorporated by reference to Exhibit 4.1 of the Company's
Current Report on Form 8-K dated November 13, 2000)
5 Opinion of Womble Carlyle Sandridge & Rice, PLLC
23.1 Consent of Womble Carlyle Sandridge & Rice, PLLC (included in
Exhibit 5)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (included on signature page)
99 Blue Rhino Corporation 1998 Stock Incentive Plan, as amended
II-3
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended
(the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
provided, however, that notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission
by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Company will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, Blue Rhino
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Winston-Salem, State of North Carolina, on this
19th day of February, 2002.
BLUE RHINO CORPORATION
By: /s/ Billy D. Prim
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Billy D. Prim
Chairman of the Board, President and
Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
Each of the undersigned, being a director and/or officer of Blue Rhino
Corporation (the "Company"), hereby constitutes and appoints Billy D. Prim and
Mark Castaneda, and each of them, the true and lawful attorneys-in-fact and
agents of the undersigned, with full power of substitution and resubstitution,
for and in the name, place and stead of the undersigned, in any and all
capabilities, to sign any and all amendments (including post-effective
amendments, exhibits thereto and other documents in connection therewith) to
this Registration Statement on Form S-8 filed by the Registrant pursuant to the
Securities Act of 1933, as amended, relating to the issuance of certain shares
of the common stock, $0.001 par value, of the Company in connection with the
Blue Rhino Corporation 1998 Stock Incentive Plan, as amended, and to file the
same, with all exhibits thereto and all documents in connection therewith, with
the Securities and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on February 19, 2002.
/s/ Billy D. Prim* Chairman of the Board, President and
- ---------------------------------- Chief Executive Officer (Principal
Billy D. Prim Executive Officer)
/s/ Mark Castaneda* Secretary, Chief Financial Officer and
- ---------------------------------- Director (Principal Financial and
Mark Castaneda Accounting Officer)
/s/ Andrew J. Filipowski* Vice Chairman of the Board
- ----------------------------------
Andrew J. Filipowski
/s/ Richard A. Brenner* Director
- ----------------------------------
Richard A. Brenner
II-5
/s/ Steven D. Devick* Director
- ----------------------------------
Steven D. Devick
/s/ Robert J. Lunn* Director
- ----------------------------------
Robert J. Lunn
/s/ John H. Muehlstein* Director
- ----------------------------------
John H. Muehlstein
/s/ David L. Warnock* Director
- ----------------------------------
David L. Warnock
*By: /s/ Billy D. Prim
- ----------------------------------
Billy D. Prim
Attorney-in-Fact
II-6
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8 OF
BLUE RHINO CORPORATION
Exhibit No. Description
- ----------- -----------
4.1 Form of Certificate of Common Stock of the Company (incorporated
by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-1 dated May 18, 1998)
4.2 Registration Rights Agreement among the Company and the
purchasers of Common Stock and Warrants dated September 7, 1999
(incorporated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K dated September 23, 1999)
4.3 Registration Rights Agreement among the Company and the Buyers of
its Convertible Notes dated September 20, 1999 (incorporated by
reference to Exhibit 4.2 to the Company's Current Report on Form
8-K dated September 23, 1999)
4.4 Amended and Restated Registration Rights Agreement, dated as of
March 1, 1997, among the Company, Forsythe/Lunn Technology
Partners, L.L.C., Platinum Propane Holding, L.L.C., the
Purchasers of Units pursuant to the Unit Purchase Agreement dated
October 11, 1995 and the Purchasers of the Company's Series A
Convertible Participating Preferred Stock (incorporated by
reference to Exhibit 10.15 to the Company's Registration
Statement on Form S-1 dated May 18, 1998)
4.5 Amendment to Amended and Restated Registration Rights Agreement
among the Company and certain holders of its Common Stock dated
September 7, 1999 (incorporated by reference to Exhibit 4.3 to
the Company's Current Report on Form 8-K dated September 23,
1999)
4.6 Form of Warrant to Purchase Common Stock of the Company issued to
purchasers of the Company's Common Stock in its private offering
dated September 7, 1999 (incorporated by reference to Exhibit 4.4
to the Company's Current Report on Form 8-K dated September 23,
1999)
4.7 Form of Warrant to Purchase Common Stock of the Company issued to
purchasers of the Company's Convertible Notes on September 20,
1999 (incorporated by reference to Exhibit 4.5 to the Company's
Current Report on Form 8-K dated September 23, 1999)
4.8 Form of Warrant issued to Michael A. Waters dated September 17,
1999 (incorporated by reference to Exhibit 4.6 to the Company's
Current Report on Form 8-K dated September 23, 1999)
4.9 Registration Rights Agreement among the Company and the
shareholders and certain employees of Uniflame, Inc. dated March
31, 2000 (incorporated by reference to Exhibit 4.1 to the
Company's Current Report on Form 8-K dated April 18, 2000)
4.10 Form of Certificate of Series A Convertible Preferred Stock of
the Company (incorporated by reference to Exhibit 4.1(b) to the
Company's Annual report on Form 10-K for the year ended July 31,
2000)
Exhibit No. Description
- ----------- -----------
4.11 Certificate of Designation, Rights and Preferences of Series
A Convertible Preferred Stock dated September 7, 2000
(incorporated by reference to Exhibit 4.10 to the Company's
Registration Statement on Form S-3 dated September 25, 2000)
4.12 Certificate of Designation, Number of Authorized Shares of Series
A Convertible Preferred Stock dated October 25, 2000
(incorporated by reference to Exhibit 4.11 to the Company's
Annual Report on Form 10-K for the year ended July 31, 2000)
4.13 Amended and Restated Registration Rights Agreement among the
Company, certain Investors and the former stockholders of
QuickShip, Inc. dated October 25, 2000 (incorporated by reference
to Exhibit 4.12 to the Company's Annual Report on Form 10-K for
the year ended July 31, 2000)
4.14 Form of Warrant issued to Thomas E. Brandtonies dated October 26,
2000 (incorporated by reference to Exhibit 4.1 of the Company's
Current Report on Form 8-K dated November 13, 2000)
5 Opinion of Womble Carlyle Sandridge & Rice, PLLC
23.1 Consent of Womble Carlyle Sandridge & Rice, PLLC (included in
Exhibit 5)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (included on signature page)
99 Blue Rhino Corporation 1998 Stock Incentive Plan, as amended