<PAGE>
As filed with the Securities and Exchange Commission on June 17, 1999
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
______________
BLUE RHINO CORPORATION
(Exact name of Registrant as specified in its charter)
______________
Delaware 56-1870472
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
______________
104 Cambridge Plaza Drive
Winston-Salem, North Carolina 27104
Telephone (336) 659-6900
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
______________
1994 STOCK INCENTIVE PLAN
(Full Title of the Plan)
______________
Billy D. Prim
Chairman and Chief Executive Officer
104 Cambridge Plaza Drive
Winston-Salem, North Carolina 27104
Telephone (336) 659-6900
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================
Amount to Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Aggregate Offering Aggregate Offering Registration
be Registered Registered Price Per Share(1) Price (1) Fee
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 162,069 $ 6.15 $ 996,724 $ 277.09
value $.001 per share Shares
===============================================================================================
</TABLE>
(1) Based upon the average exercise price of $6.15 per share in accordance
with Rule 457(h) under the Securities Act of 1933, as amended.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 1994 Stock Incentive Plan of Blue Rhino Corporation, a
Delaware corporation (the "Registrant") pursuant to Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Exchange Act of 1934, as amended (the
"Exchange Act"), and in accordance therewith files reports, proxy statements and
other information with the Securities and Exchange Commission (the
"Commission"). The following documents, which are on file with the Commission,
are incorporated in this Registration Statement by reference:
(a) The Registrant's annual report on Form 10-K for the fiscal year ended
July 31, 1998 as amended by the Form 10-K/A filed with the Commission on
February 16, 1999 amending the Registrant's Form 10-K and the Form 10-K/A-2
filed with the Commission on March 18, 1999 further amending the Registrant's
Form 10-K.
(b) The Registrant's quarterly reports on Form 10-Q for the fiscal quarter
ended October 31, 1998 amended by the Form 10-Q/A-1 filed with the Commission on
February 16, 1999, for the fiscal quarter ended January 31, 1999 filed with
the Commission on March 17, 1999 and for the fiscal quarter ended April 30, 1999
filed with the Commission on June 14, 1999.
(c) The Registrant's current reports on Form 8-K filed with the Commission
on February 26, 1999, March 4, 1999 and May 7, 1999.
(d) The description of the Registrant's common stock under the caption
"Description of Capital Stock" contained in the Registrant's prospectus dated
May 18, 1998, filed with the Commission on May 19, 1998 pursuant to Rule 424(b)
under the Securities Act of 1933, as amended (the "Securities Act") and deemed
to be a part of the Registrant's registration statement on Form S-1 (file number
333-47669).
(e) All documents subsequently filed by the Registrant 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 shares offered hereby have
been sold or which deregisters all shares then remaining unsold, shall be deemed
to be incorporated in this Registration Statement by reference and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
John Muehlstein, one of the Registrant's directors, is a partner in the
firm of Pedersen & Houpt, P.C., the Registrant's legal counsel.
Peer Pedersen, a Stockholder of the Registrant and the owner of 26% of USA
Leasing, L.L.C., an entity affiliated with the Registrant, is a partner in the
firm of Pedersen & Houpt, P.C., the Registrant's legal counsel.
1
<PAGE>
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 Registrant;
allows the advancement of costs of defending against litigation; and permits
companies incorporated in Delaware to purchase insurance on behalf of directors,
officers, employees and agents against liabilities whether or not in the
circumstances such companies would have the power to indemnify against such
liabilities under the provisions of the statute. The Registrant's Second Amended
and Restated Certificate of Incorporation ("Charter") provides that the
Registrant will indemnify its directors and officers to the fullest extent
permitted by law.
Under the provisions of the Registrant's Charter, any director or officer
who, in his or her capacity as such, is made or threatened to be made a party to
any suit or proceeding shall be indemnified if the Board of Directors determines
such director or officer acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Registrant or, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The Registrant will
not however indemnify any director or officer where such director or officer:
(a) breaches his or her duty of loyalty to the Registrant or its stockholders;
(b) fails to act in good faith or engages in intentional misconduct or knowing
violation of law; (c) authorizes payment of an unlawful dividend or stock
repurchase or redemption; or (d) obtains an improper personal benefit. While
liability for monetary damages has been eliminated, equitable remedies such as
injunctive relief or rescission remain available. In addition, a director is not
relieved of his or her responsibilities under any other law, including the
federal securities laws.
Indemnification under the Registrant's Charter and Amended and Restated By-
laws ("By-laws") includes payment by the Registrant of expenses in defending an
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by the indemnified party to
repay such advance if it is ultimately determined that such person is not
entitled to indemnification under the Charter, which undertaking may be accepted
without reference to the financial ability of such person that makes such
repayments. The Registrant is not responsible for the indemnification of any
person seeking indemnification in connection with a proceeding initiated by such
person unless the initiation was approved by the Board of Directors of the
Registrant. The Charter and the DGCL further provide that such indemnification
is not exclusive of any other rights to which such individuals may be entitled
under the Charter, the By-laws, any agreement, any vote of stockholders or
disinterested directors, or otherwise. The Registrant carries directors and
officers insurance covering its executive officers and directors.
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act of 1933, as amended (the "Securities Act"), may be permitted
to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, the Registrant 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.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is attached hereto and
incorporated herein by reference.
Item 9. Undertakings
1. The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
2
<PAGE>
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(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.
(b) 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.
(c) 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.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Winston-Salem, North Carolina, on June 17, 1999.
BLUE RHINO CORPORATION
By: /s/ Billy D. Prim
-----------------------------------------
Billy D. Prim
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on June 17, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Billy D. Prim President and Chairman of the Board
- -------------------------- (Principal Executive Officer)
Billy D. Prim
/s/ Mark Castaneda Secretary and Chief Financial Officer
- -------------------------- (Principal Financial and Accounting Officer)
Mark Castaneda
/s/ Andrew J. Filipowski Vice Chairman of the Board
- --------------------------
Andrew J. Filipowski
/s/ Craig J. Duchossois Director
- --------------------------
Craig J. Duchossois
/s/ Steven D. Devick Director
- --------------------------
Steven D. Devick
/s/ Richard A. Brenner Director
- --------------------------
Richard A. Brenner
/s/ John H. Muehlstein Director
- --------------------------
John H. Muehlstein
</TABLE>
4
<PAGE>
Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ----------------------
<S> <C>
4.1 Second Amended and Restated Certificate of Incorporation of
the Registrant incorporated herein by reference to Exhibit 3.1
to the Company's report on Form 10-Q dated July 2, 1998.
4.2 Amended and Restated By-laws of the Registrant incorporated
herein by reference to Exhibit 3.2 to the Registration
Statement on Form S-1 (File No. 333-47669) of the Registrant
as declared effective by the Commission on May 18, 1998.
4.3 Amended and Restated Registration Rights Agreement, dated as
of March 1, 1997, among the Registrant, 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
Registrant's Series A Convertible Participating Preferred
Stock incorporated herein by reference to Exhibit 10.15 to the
Registration Statement on Form S-1 (File No. 333-47669) of the
Registrant as declared effective by the Commission on May 18,
1998.
5.1 Legal Opinion of Pedersen & Houpt, P.C.
23.1 Consent of Pedersen & Houpt, P.C.
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney
</TABLE>
5
<PAGE>
EXHIBIT 5.1
LEGAL OPINION OF PEDERSEN & HOUPT, P.C.
(Pedersen & Houpt, P.C. Letterhead)
June 17, 1999
Blue Rhino Corporation
104 Cambridge Plaza Drive
Winston-Salem, North Carolina 27104
Gentlemen:
We have acted as counsel to Blue Rhino Corporation, a Delaware
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement"), which has
been filed by the Company with the Securities and Exchange Commission for the
purpose of registering under the Securities Act of 1933, as amended (the
"Securities Act") and the rules and regulations thereunder the sale of up to
162,069 (the "Shares") of the Company's Common Stock, $.001 par value per share
("Common Stock") upon the exercise of options granted under the Company's 1994
Stock Incentive Plan (the "Plan").
Before rendering the opinions hereinafter set forth, we examined, among
other things:
1. Registration Statement;
2. The Plan;
3. The Company's Second Amended and Restated Certificate of
Incorporation;
4. The Company's Amended and Restated Bylaws;
5. Resolutions of the Company's Board of Directors; and
originals or photostatic or certified copies of all those corporate records of
the Company and of all those agreements, communications and other instruments,
certificates of public officials, certificates of corporate officials and such
other documents as we have deemed relevant and necessary as a basis for the
opinions hereinafter set forth. As to factual matters known to
<PAGE>
June 17, 1999
Page 2
the Company, we have relied without investigation, to the extent we deem such
reliance proper, upon certificates or representations made by the Company's duly
authorized representatives.
We are members of the Bar of the State of Illinois, and we express no
opinion with respect to laws other than the laws of the State of Illinois, the
General Corporation Law of the State of Delaware and federal laws of the United
States of America.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that when (i) the Registration
Statement becomes effective under the Securities Act and (ii) the options have
been duly exercised pursuant to the terms of the Plan, that the Shares will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion letter as an exhibit to
the Registration Statement. In giving this consent, we do not hereby admit that
we are within the category of persons whose consent is required under Section 7
of the Securities Act and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
/s/ Pedersen & Houpt, P.C.
<PAGE>
EXHIBIT 23.1
CONSENT OF PEDERSEN & HOUPT, P.C.
Pedersen & Houpt, P.C. hereby consents to all references made to it in
the Registration Statement on Form S-8 for the 1994 Stock Incentive Plan of Blue
Rhino Corporation, as filed with the Securities and Exchange Commission on June
17, 1999.
/s/ Pedersen & Houpt, P.C.
Chicago, Illinois
June 17, 1999
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and
Shareholders of Blue Rhino Corporation:
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 for the 1994 Stock Incentive Plan of our report dated
September 22, 1998 (except for the information in Note 21 for which the date is
February 8, 1999) relating to the consolidated financial statements, which
appears in Blue Rhino Corporation's Annual Report on Form 10-K/A-1 for the year
ended July 31, 1998.
/s/ PricewaterhouseCoopers LLP
June 14, 1999
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Billy D. Prim and Mark Castaneda as his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, to act, without the other, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this Registration Statement on Form
S-8, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or any of them, or their substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on June 17, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Billy D. Prim President and Chairman of the Board
- -------------------------- (Principal Executive Officer)
Billy D. Prim
/s/ Mark Castaneda Secretary and Chief Financial Officer
- -------------------------- (Principal Financial and Accounting Officer)
Mark Castaneda
/s/ Andrew J. Filipowski Vice Chairman of the Board
- --------------------------
Andrew J. Filipowski
/s/ Craig J. Duchossois Director
- --------------------------
Craig J. Duchossois
/s/ Steven D. Devick Director
- --------------------------
Steven D. Devick
/s/ Richard A. Brenner Director
- --------------------------
Richard A. Brenner
/s/ John H. Muehlstein Director
- --------------------------
John H. Muehlstein
</TABLE>
