Exhibit 10.13
Blue Rhino Corporation
DISTRIBUTOR OPTION PLAN
TABLE OF CONTENTS
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Page
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ARTICLE I
ESTABLISHMENT...........................................................1
ARTICLE II
DEFINITIONS.............................................................1
ARTICLE III
ADMINISTRATION..........................................................4
3.1 Committee Structure and Authority................................4
ARTICLE IV
STOCK SUBJECT TO PLAN...................................................6
4.1 Number of Shares.................................................6
4.2 Release of Shares................................................6
4.4 Stockholder Rights...............................................7
4.5 Registration of Common Stock Under This Plan.....................7
ARTICLE V
ELIGIBILITY.............................................................8
5.1 Eligibility......................................................8
ARTICLE VI
GRANT OF STOCK OPTIONS..................................................9
6.1 General..........................................................9
6.2 Grant and Exercise...............................................9
6.3 Terms and Conditions.............................................9
6.4 Exercise Upon Death.............................................10
6.5 Other Termination...............................................10
6.6 Cashing Out of Option...........................................11
ARTICLE VII
PROVISIONS APPLICABLE TO STOCK ACQUIRED UNDER THE PLAN.................11
(i)
7.1 Transfer of Shares..............................................11
7.2 Limited Transfer During Offering................................11
ARTICLE VIII
MISCELLANEOUS..........................................................11
8.1 Amendments and Termination......................................11
8.2 General Provisions..............................................12
8.3 Rights with Respect to Continuance of Distribution Agreement....13
8.4 Delay...........................................................13
8.5 Headings........................................................14
8.6 Severability....................................................14
8.7 Successors and Assigns..........................................14
(ii)
Blue Rhino Corporation
DISTRIBUTOR OPTION PLAN
ARTICLE I
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The Blue Rhino Corporation Distributor Option Plan ("Plan") is hereby established by Blue Rhino Corporation ("Company"). The purpose of the Plan is to attract and retain distributors who perform services for customers of the Company or its "Affiliates" (as hereinafter defined), to give distributors an incentive to provide quality service and thereby increase the number of Company customer accounts and to promote the identification of the interests of such distributors with those of the stockholders of the Company.
ARTICLE II
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For purposes of the Plan, the following terms are defined as set forth below:
"Affiliate" means any individual, corporation, partnership, association, joint-stock company, trust, unincorporated association or other entity (other than the Company) that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Company including, without limitation, any member of an affiliated group of which the Company is a common parent corporation as provided in Section 1504 of the Code.
"Agreement" or "Option Agreement" means, individually or collectively, any agreement entered into pursuant to the Plan pursuant to which a Stock Option is granted to a Participant.
"Board of Directors" or "Board" means the Board of Directors of the Company.
"Cause" means (a) any act or omission which permits the Company to terminate its relationship immediately with a Distributor which is the Participant or in which the Participant has an ownership interest; (b) any act of gross negligence or willful misconduct on the part of the Participant or the Distributor in which the Participant has an ownership interest which has, or in the opinion of the Committee may have, an adverse affect on the Company's customer accounts or the business of the Company or an Affiliate; or (c) any failure to cure a breach of the Participant's or the Participant's Distributor's obligations under its Distributor Agreement within ten (10) days after the Company or an Affiliate has given written notice of such breach to the Participant or the Participant's Distributor.
"Code" or "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, final Treasury Regulations thereunder and any subsequent Internal Revenue Code.
"Commission" means the Securities and Exchange Commission or any successor agency.
"Committee" means the Compensation Committee of the Board, or such other committee of the Board appointed by the Board of Directors to administer the Plan, as further described in the Plan.
"Common Stock" means the shares of the Common Stock, $0.001 par value, of the Company whether presently or hereafter issued, and any other stock or security resulting from adjustment thereof as described hereinafter or the common stock of any successor to the Company which is designated for the purpose of the Plan.
"Company" means Blue Rhino Corporation, a Delaware corporation, and includes any successor or assignee corporation or corporations into which the Company may be merged, changed or consolidated; any corporation for whose securities the securities of the Company are exchanged; and any assignee of or successor to substantially all of the assets of the Company.
"Distributor" means a Person, including an officer or director of the Company, who is permitted to distribute the Company's or an Affiliate's products and service the Company's or an Affiliate's customers pursuant to a Distribution Agreement.
"Distribution Agreement" means a written agreement between the Company and one or more of its Affiliates and a Person authorizing such Person to be Distributor.
"Effective Date" means ____________, 1998.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"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 National 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;
(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.
"Grant Date" means the date that as of which a Stock Option is granted pursuant to the Plan.
"Non-Employee Directors" has the meaning set forth in Rule 16b-3, or any successor definition adopted by the Commission, provided the person is also an "outside director" under Section 162(m) of the Code.
"Non-Qualified Stock Option" means an Option to purchase Common Stock in the Company granted under the Plan other than an incentive stock option within the meaning of Section 422 of the Code.
"Option Period" means the period during which the Option will be exercisable in accordance with the Option Agreement and Article VI.
"Option Price" means the price at which the Common Stock may be purchased under an Option as provided in Section 6.3.
"Participant" means a Person who satisfies the eligibility conditions of Article V and to whom a Stock Option has been granted by the Committee under the Plan, and if a Representative is appointed for a Participant, then the term "Participant" means such appointed Representative, successor Representative, or spouse as the case may be. The term also includes a trust for the benefit of the Participant, the Participant's parents, spouse or descendants, or a custodian under a uniform gifts to minors act or similar statute for the benefit of the Participant's descendants, to the extent permitted by the Committee and not inconsistent with the Rule 16b-3.
"Person" means an individual, corporation, limited liability company, partnership, joint venture, trust or other entity.
"Plan" means the Blue Rhino Corporation Distributor Option Plan, as herein set forth and as may be amended from time to time.
"Representative" means (a) the person or entity acting as the executor or administrator of a Participant's estate pursuant to the last will and testament of a Participant or pursuant to the laws of the jurisdiction in which the Participant had the Participant's primary residence at the date of the Participant's death; (b) the person or entity acting as the guardian or temporary guardian of a Participant; (c) the person or entity which is the beneficiary of the Participant upon
or following the Participant's death; or (d) the person or entity acting as the receiver or trustee on behalf of a Participant which is not a natural person.
"Rule 16b-3" means Rule 16b-3, as promulgated under the Exchange Act, as amended from time to time, or any successor thereto.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
"Stock Option" means a Non-Qualified Stock Option granted under this Plan.
"Termination" means the termination of the Distribution Agreement and the end of the distributorship relationship for whatever reason between the Company or one or more of its Affiliates and the Participant or the Distributor in which the Participant has an ownership interest.
ARTICLE III
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3.1 Committee Structure and Authority. The Plan will be administered by the Committee. After the Company has an effective registration statement for any securities issued by the Company under the Securities Act, the Committee, except as provided herein, will be comprised of such number of Non-Employee Directors (and no other persons) as is required for application of Section 162(m) of the Code and Rule 16b-3. In the absence of appointment of the Committee or a successor committee of the Board, the entire Board of Directors will constitute the Committee. A majority of the Committee will constitute a quorum at any meeting thereof (thereof (including telephone conference) and the acts of a majority of the members present, or acts approved in writing by a majority of the entire Committee without a meeting, will be the acts of the Committee for purposes of this Plan. The Committee may authorize any one or more of its members or an officer of the Company to execute and deliver documents on behalf of the Committee. A member of the Committee will not exercise any discretion respecting himself, herself or any entity in which such member holds an ownership interest under the Plan. The Board will have the authority to remove, replace or fill any vacancy of any member of the Committee upon notice to the Committee and the affected member. Any member of the Committee may resign upon notice to the Board. The Committee may allocate among one or more of its members, or may delegate to one or more of its agents, such duties and responsibilities as it determines.
Among other things, the Committee will have the authority, subject to the terms of the Plan:
(a) to select those Persons to whom Stock Options may be granted from time to time;
(b) to determine the number of shares of Common Stock to be covered by each Stock Option granted hereunder; provided, however, that the number of shares of Common Stock which can be awarded in any calendar year to any Participant shall not exceed 100,000 shares:
(c) to determine the terms and conditions of any Stock Option granted hereunder (including, without limitation, the Option Price, the Option Period, any exercise restriction or limitation and any exercise acceleration, forfeiture or waiver regarding any Stock Option and the sha ...
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