Exhibit 1.1
7,000,000 Common Units
Representing Limited Partner Interests
UNDERWRITING AGREEMENT
April 7, 2004
UNDERWRITING AGREEMENT
April 7, 2004
CITIGROUP GLOBAL MARKETS INC.
UBS SECURITIES LLC
WACHOVIA CAPITAL MARKETS, INC.
LEHMAN BROTHERS INC.
SANDERS MORRIS HARRIS INC.
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON LLC
As Representatives of the several Underwriters
c/o Citigroup global markets inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Ferrellgas Partners, L.P., a Delaware limited partnership (the
"Partnership"), the issuer of common units representing limited partner
interests in the Partnership ("Common Units"), proposes to issue and sell to the
underwriters named in Schedule A annexed hereto (the "Underwriters"), for whom
you are acting as representatives, an aggregate of 7,000,000 Common Units (the
"Firm Units"). In addition, solely for the purpose of covering over-allotments,
the Partnership proposes to grant to the Underwriters the option to purchase
from the Partnership up to an additional 1,050,000 Common Units (the "Additional
Units"). The Firm Units and the Additional Units are hereinafter collectively
sometimes referred to as the "Units." The Units are described in the Final
Prospectus which is referred to below.
The Partnership has prepared and filed, in accordance with the provisions
of the Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the "Act"), with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-103267) including a prospectus subject to completion, relating to the Common
Units. The registration statement (including all financial schedules and
exhibits), as amended when it became effective, or, if it became effective prior
to the execution of this Agreement, as supplemented or amended prior to the
execution of this Agreement is herein called the "Registration Statement." If it
is contemplated, at the time this Agreement is executed, that a post-effective
amendment or post-effective amendments to the Registration Statement will be
filed and must be declared effective before the offering of the Units may
commence, the term "Registration Statement" as used in this Agreement means such
registration statement as amended by said post-effective amendment or
post-effective amendments. If it is contemplated, at the time the Agreement is
executed, that a registration statement or statements will be filed pursuant to
Rule 462(b) under the Act before the offering of the Units may commence, the
term "Registration Statement" as used in this Agreement includes such
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
registration statement or statements. The term "Basic Prospectus" as used in
this Agreement shall mean the prospectus contained in the Registration Statement
at the time such Registration Statement was declared effective or in the form in
which it has been most recently filed with the Commission on or prior to the
date of this Agreement. "Preliminary Prospectus" shall mean any preliminary
prospectus supplement or supplements to the Basic Prospectus, together with the
Basic Prospectus, which describes the Units and the offering thereof, that is
filed pursuant to Rule 424(b) under the Act ("Rule 424(b)") and is used prior to
the filing of the Final Prospectus. "Final Prospectus" shall mean the prospectus
supplement relating to the Units and the offering thereof that is first filed
pursuant to Rule 424(b) after the date and time this Agreement is executed and
delivered by the parties hereto, together with the Basic Prospectus.
All references in this Agreement to financial statements and schedules and
other information that are "contained," " included " or "stated" in the
Registration Statement, the Basic Prospectus, the Preliminary Prospectus or the
Final Prospectus (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
that is incorporated by reference in the Registration Statement, the Basic
Prospectus, the Preliminary Prospectus or the Final Prospectus, as the case may
be; any reference in this Agreement to the Registration Statement, the Basic
Prospectus, the Preliminary Prospectus or the Final Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3, as of the dates of the Registration Statement, the Basic
Prospectus, the Preliminary Prospectus or the Final Prospectus, as the case may
be; and any reference to any amendment or supplement to the Registration
Statement, the Basic Prospectus, the Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include any documents filed after
such date under the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder (collectively, the "Exchange Act")
which, upon filing, are incorporated by reference therein, as required by
paragraph (b) of Item 12 of Form S-3. As used herein, the term "Incorporated
Documents" means the documents which at the time are incorporated by reference
in the Registration Statement, the Basic Prospectus, the Preliminary Prospectus
or the Final Prospectus or any amendment or supplement thereto.
Ferrellgas, Inc., a Delaware corporation (the "General Partner"), is the
sole general partner of the Partnership and the sole general partner of
Ferrellgas, L.P. (the "Operating Partnership"). The Partnership, the Operating
Partnership and the General Partner are collectively referred to herein as the
"Ferrellgas Parties." The Ferrellgas Parties confirm as follows their agreements
with the Underwriters:
1. Sale and Purchase. Upon the basis of the warranties and representations
and subject to the terms and conditions herein set forth, the Partnership agrees
to issue and sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Partnership the number of
Firm Units set forth opposite the name of such Underwriter in Schedule A
attached hereto, subject to adjustment in accordance with Section 8 hereof, in
each case at a purchase price of $23.34 per Unit. The Partnership is advised by
you that the Underwriters intend initially to offer the Firm Units upon the
terms set forth in the Final Prospectus. You may from time to time increase or
decrease the public offering price after the initial public offering to such
extent as you may determine.
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
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In addition, the Partnership hereby grants to the several Underwriters the
option to purchase, and upon the basis of the warranties and representations and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Partnership,
ratably in accordance with the number of Firm Units to be purchased by each of
them, all or a portion of the Additional Units as may be necessary to cover
over-allotments made in connection with the offering of the Firm Units, at the
same purchase price per Unit to be paid by the Underwriters to the Partnership
for the Firm Units. This option may be exercised by Citigroup Global Markets
Inc.("Citigroup") on behalf of the several Underwriters at any time (but not
more than once) on or before the thirtieth day following the date hereof, by
written notice to the Partnership. Such notice shall set forth the aggregate
number of Additional Units as to which the option is being exercised, and the
date and time when the Additional Units are to be delivered (such date and time
being herein referred to as the "additional time of purchase"); provided,
however, that the additional time of purchase shall not be earlier than the time
of purchase (as defined below) nor earlier than the second business day1 after
the date on which the option shall have been exercised nor later than the tenth
business day after the date on which the option shall have been exercised. The
number of Additional Units to be sold to each Underwriter shall be the number
which bears the same proportion to the aggregate number of Additional Units
being purchased as the number of Firm Units set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total number of Firm Units
(subject, in each case, to such adjustment as you may determine to eliminate
fractional shares), subject to adjustment in accordance with Section 8 hereof.
2. Payment and Delivery. Payment of the purchase price for the Firm Units
shall be made to the Partnership by Federal Funds wire transfer, against
delivery of the Firm Units to you through the facilities of The Depository Trust
Company for the account of the Underwriters. Such payment and delivery shall be
made at 10:00 A.M., New York City time, on April 14, 2004 (unless another time
shall be agreed to in writing by you and the Partnership or unless postponed in
accordance with the provisions of Section 8 hereof). The time at which such
payment and delivery of the Firm Units are actually made is hereinafter
sometimes called the "time of purchase."
Electronic transfer of the Firm Units shall be made to you at the time of
purchase in such names and in such denominations as you shall specify. Payment
of the purchase price for the Additional Units shall be made at the additional
time of purchase in the same manner and at the same office as the payment for
the Firm Units. Electronic transfer of the Additional Units shall be made to you
at the additional time of purchase in such names and such denominations as you
shall specify.
1. As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
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Deliveries of the documents described in Section 6 hereof with respect to
the purchase of the Units shall be made at the offices of Vinson & Elkins
L.L.P., 2300 First City Tower, 1001 Fannin Street, Houston, Texas, 77002, at
9:00 A.M., New York City time, on the date of the closing of the purchase of the
Firm Units or the Additional Units, as the case may be.
3. Representations and Warranties of the Partnership. Each of the
Ferrellgas Parties, jointly and severally, represents and warrants to and agrees
with the Underwriters that:
(a) No order preventing or suspending the use of the Basic Prospectus
or the Preliminary Prospectus has been issued by the Commission, and the
Basic Prospectus included as part of the Registration Statement as
originally filed or as part of any amendment or supplement thereto, and the
Preliminary Prospectus filed pursuant to Rule 424(b), conformed when so
filed in all material respects with the requirements of the Act, and did
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Partnership by the Underwriters expressly for use therein;
(b) The Registration Statement in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective, and the Final
Prospectus and any supplement or amendment thereto when filed with the
Commission under Rule 424(b) and at the time of purchase and, if
applicable, at the additional time of purchase, conformed or will conform
in all material respects with the requirements of the Act, and did not or
will not at any such times contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and the statements made or
to be made by the Partnership in such documents within the coverage of Rule
175(b) under the Act, including any statements with respect to the
anticipated ratio of taxable income to distributions, were made or will be
made with a reasonable basis and in good faith; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Partnership by the Underwriters expressly for
use therein;
(c) The Incorporated Documents heretofore filed, when they were filed
(or, if any amendment with respect to any such document was filed, when
such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act; any further Incorporated Documents so
filed will, when they are filed, conform in all material respects with the
requirements of the Exchange Act; no such document when it was filed (or,
if an amendment with respect to any such document was filed, when such
amendment was filed), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and no such further document, when it
is filed will contain an untrue statement of a material fact or will omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
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(d) Each of the Partnership and the Operating Partnership has been
duly formed and is validly existing as a limited partnership under the
Delaware Revised Uniform Limited Partnership Act (the "Delaware Act"), with
power and authority (partnership and other) to own or lease its properties
and to conduct its business, in each case as described in the Final
Prospectus, and has been duly qualified or registered as a foreign limited
partnership for the transaction of business and is in good standing under
the laws of each jurisdiction in which it owns or leases property, or
conducts any business, so as to require such qualification or registration
(except where the failure to be so qualified or registered would not have a
material adverse effect upon the business, prospects, financial condition
or results of operations of the Ferrellgas Parties, taken as a whole, or
subject the Partnership or the holders of Common Units to any material
liability or disability);
(e) The General Partner has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state of
Delaware, with power and authority (corporate and other) to own or lease
its properties, to conduct its business and to act as general partner of
the Partnership and of the Operating Partnership, in each case as described
in the Final Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification (except where
the failure to be so qualified would not have a material adverse effect
upon the business, prospects, financial condition or results of operations
of the Ferrellgas Parties, taken as a whole, or subject the Partnership or
the holders of Common Units to any material liability or disability);
(f) The General Partner is the sole general partner of the Partnership
with a general partner interest in the Partnership of 1.0%; such general
partner interest has been duly authorized and validly issued and is fully
paid (to the extent required); and the General Partner owns such general
partner interest free and clear of all liens, encumbrances, charges or
claims (except for such liens, encumbrances, charges or claims as are not,
individually or in the aggregate, material to the ownership, use or value
thereof or as disclosed in the Final Prospectus);
(g) The General Partner is the sole general partner of the Operating
Partnership with a general partner interest in the Operating Partnership of
1.0101%; such general partner interest has been duly authorized and validly
issued and is fully paid (to the extent required); and the General Partner
owns such general partner interest free and clear of all liens,
encumbrances, charges or claims (except for such liens, encumbrances,
charges or claims as are not, individually or in the aggregate, material to
the ownership, use or value thereof or as disclosed in the Final
Prospectus);
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
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(h) The Partnership is the sole limited partner of the Operating
Partnership, with a limited partner interest of 98.9899%; such limited
partner interest has been duly authorized by the Operating Partnership
Agreement (as defined below), and was validly issued and is fully paid and
non-assessable (except as non-assessability may be affected by certain
provisions of the Delaware Act); and the Partnership owns such limited
partner interest in the Operating Partnership free and clear of all liens,
encumbrances, charges or claims (except for such liens, encumbrances,
charges or claims as are not, individually or in the aggregate, material to
the ownership, use or value thereof or as disclosed in the Final
Prospectus);
(i) All outstanding Common Units and the limited partner interests
represented thereby have been duly authorized and validly issued and are
fully paid and non-assessable (except as non-assessability may be affected
by certain provisions of the Delaware Act);
(j) The Partnership Units to be issued to the Underwriters and the
limited partner interests represented thereby are duly authorized and, when
issued and delivered against payment therefor as provided herein, will be
validly issued, fully paid and non-assessable (except as non-assessability
may be affected by certain provisions of the Delaware Act);
(k) Except as disclosed in the Final Prospectus, there are no
preemptive rights or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any limited partner interests
in the Partnership or the Operating Partnership pursuant to the Fourth
Amended and Restated Agreement of Limited Partnership of the Partnership
dated February 18, 2003 (as it may be amended and restated at or prior to
the time of purchase, the "Partnership Agreement") or the Third Amended and
Restated Agreement of Limited Partnership of the Operating Partnership,
dated April 7, 2004 (as it may be amended and restated at or prior to the
time of purchase, the "Operating Partnership Agreement," and together with
the Partnership Agreement, the "Partnership Agreements") or other governing
documents or any agreement or other instrument to which the Partnership or
the Operating Partnership is a party or by which either of them may be
bound (except, in the case of restrictions upon voting or transfer, where
such restrictions would not subject the Partnership or the holders of
Common Units to any material liability or disability); the capitalization
of the Partnership is in all material respects as described in the Final
Prospectus under the caption "Capitalization," and the Common Units, the
Senior Units (as defined in the Partnership Agreement) and the Partnership
Agreements conform in all material respects to the descriptions thereof
contained in the Final Prospectus;
(l) All of the outstanding shares of capital stock of the General
Partner have been duly authorized and validly issued and are fully paid and
non-assessable; and all of such shares are owned by Ferrell Companies, Inc.
("Ferrell"), free and clear of all liens, encumbrances, equities or claims
(except for such liens, encumbrances, equities or claims as are not,
individually or in the aggregate, material to the ownership, use or value
thereof or as disclosed in the Final Prospectus);
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
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(m) The execution and delivery of, and the performance by each of the
Ferrellgas Parties of their respective obligations under, this Agreement
have been duly authorized by each of the Ferrellgas Parties, and this
Agreement has been duly executed and delivered by each of the Ferrellgas
Parties and constitutes the valid and legally binding agreement of each of
the Ferrellgas Parties, enforceable against each of them in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, and limitations under federal or state securities laws with
respect to the rights to indemnification or contribution hereunder; the
Partnership Agreement has been duly authorized, executed and delivered by
the General Partner for itself and as attorney-in-fact for each of the
limited partners of the Partnership pursuant to the powers of attorney
granted by the Partnership Agreement, and is a valid and legally binding
agreement of the General Partner and each of the limited partners of the
Partnership, enforceable against the General Partner and each of the
limited partners of the Partnership in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the Operating
Partnership Agreement has been duly authorized, executed and delivered by
the General Partner and the Partnership and is a valid and legally binding
agreement of the General Partner and the Partnership, enforceable against
the General Partner and the Partnership in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(n) The issuance and sale of the Units by the Partnership, and the
execution, delivery and performance by the Ferrellgas Parties of this
Agreement and the consummation by each of the Ferrellgas Parties of the
transactions contemplated hereby will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which any of the Ferrellgas Parties is a
party or by which any of the Ferrellgas Parties is bound or to which any of
their properties or assets is subject, (ii) result in any violation of the
provisions of the certificate or agreement of limited partnership or of the
charter or bylaws or other organizational documents of any of the
Ferrellgas Parties or (iii) result in a violation of any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over any of them or any of their properties, except in
the case of clause (i) or (iii) where such conflict, breach, violation or
default will not prevent the consummation of the transactions contemplated
herein and would not have a material adverse effect upon the business,
prospects, financial condition or results of operations of the Ferrellgas
Parties, taken as a whole, or subject the Partnership or the holders of
Common Units to any material liability or disability; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issuance
and sale of the Units by the Partnership or the consummation by the
Ferrellgas Parties of the transactions contemplated hereby, except (i) the
registration under the Act of the Units or (ii) such consents, approvals,
authorizations, orders, registrations or qualifications (A) as have been,
or prior to the time of purchase will be, obtained or (B) as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Units by the Underwriters;
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
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(o) Except as disclosed in the Final Prospectus, there are no legal or
governmental proceedings pending to which any of the Ferrellgas Parties is
a party or of which any of their respective properties is the subject,
which, if determined adversely to such person, would, individually or in
the aggregate, have a material adverse effect upon the business, prospects,
financial condition or results of operations of the Ferrellgas Parties,
taken as a whole; and to the knowledge of the Ferrellgas Parties, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(p) The statements made in the Final Prospectus under the caption
"Description of Common Units, Senior Units and Deferred Participation
Units," insofar as they purport to constitute summaries of the terms of the
Common Units, Senior Units and Deferred Participation Units, under the
caption "Tax Consequences", under the caption "Tax Considerations", and
under the caption "Conflicts of Interest and Fiduciary Responsibilities"
insofar as they describe the provisions of the documents therein described,
are accurate, complete and fair summaries in all material respects;
(q) Each of the Ferrellgas Parties carries, or is covered by,
insurance in such amounts and covering such risks as is customarily
obtained by businesses similarly situated, taking into account
self-insurance;
(r) None of the Ferrellgas Parties is in, nor will consummation of the
transactions contemplated hereby result in: (i) violation of its agreement
of limited partnership or charter, as the case may be; or (ii) default (and
no event has occurred which, with notice or lapse of time or both, would
constitute such a default) in the due performance or observance of any
term, covenant or condition contained in any agreement, indenture or
instrument to which it or its property may be subject, or violation of any
law, ordinance, governmental rule, regulation or court decree to which it
or its property may be subject, which default or violation, individually or
in the aggregate, would have a material adverse effect upon the business,
prospects, financial condition or results of operations of the Ferrellgas
Parties, taken as a whole, or subject the Partnership or the holders of
Common Units to any material liability or disability;
(s) Except as disclosed in the Final Prospectus, each of the
Ferrellgas Parties possess, and are operating in compliance in all material
respects with, all certificates, authorities or permits issued by the
appropriate local, state, federal or foreign regulatory agencies or bodies
necessary to conduct the business currently (or, as described or
contemplated in the Final Prospectus, to be) operated by them, except for
such certificates, authorizations or permits which, if not obtained, would
not have, individually or in the aggregate, a material adverse effect upon
the ability of the Ferrellgas Parties to conduct their businesses in all
material respects as currently conducted and as contemplated by the Final
Prospectus to be conducted; and, except as disclosed in the Final
Prospectus, none of the Ferrellgas Parties has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or filing,
would have a material adverse effect upon the ability of the Ferrellgas
Parties to conduct their businesses in all material respects as currently
conducted and as contemplated by the Final Prospectus to be conducted;
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
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(t) None of the Ferrellgas Parties has any subsidiaries (other than
the Partnership and the Operating Partnership themselves) which,
individually or considered as a whole, would be deemed to be a significant
subsidiary (as defined in Rule 405 under the Act);
(u) The financial statements (including the related notes and
supporting schedules) included in the Registration Statement and the Final
Prospectus (and any amendment or supplement thereto) present fairly in all
material respects the financial position, results of operations and cash
flows of the entities purported to be shown thereby, at the dates and for
the periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods indicated, except to the extent disclosed therein. The other
financial information set forth in the Registration Statement or the Final
Prospectus accurately presented in all material respects and was prepared
on a basis consistent with the audited and unaudited historical
consolidated financial statements from which it has been derived, except as
disclosed therein. The pro forma financial statements and other pro forma
financial information included or incorporated by reference in the
Registration Statement or the Final Prospectus (i) present fairly in all
material respects the information shown therein, (ii) have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and (iii) have been properly computed on the
bases described therein. The assumptions used in the preparation of the pro
forma financial statements and other pro forma financial information
included or incorporated by reference in the Registration Statement or the
Final Prospectus are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein. No other financial statements or schedules of the Partnership are
required by the Act or the Exchange Act to be included in the Registration
Statement or the Final Prospectus; and the Partnership and the Ferrellgas
Parties do not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), not disclosed in
the Final Prospectus.
(v) Except as disclosed in the Final Prospectus, subsequent to the
respective dates as of which such information is given in the Final
Prospectus , (i) none of the Ferrellgas Parties has incurred any liability
or obligation, indirect, direct or contingent (including off-balance sheet
obligations), or entered into any transactions, not in the ordinary course
of business, that, singly or in the aggregate, is material to the
Ferrellgas Parties, taken as a whole, (ii) there has not been any material
change in the capitalization, or material increase in the short-term debt
or long-term debt, of the Partnership and the Operating Partnership, taken
as a whole, and (iii) there has not been any material adverse change, or
any development involving or which may reasonably be expected to involve,
singly or in the aggregate, a prospective material adverse change in the
business, prospects, financial condition or results of operations of the
Ferrellgas Parties, taken as a whole;
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
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(w) There are no legal or governmental proceedings pending or, to the
knowledge of the Ferrellgas Parties, threatened, against any of the
Ferrellgas Parties or any of their subsidiaries, or to which any of the
Ferrellgas Parties or any of their subsidiaries is a party, or to which any
of their respective properties is subject, that are required to be
described in the Registration Statement or the Final Prospectus that are
not described as required; there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the
Registration Statement or the Final Prospectus or to be filed as an exhibit
to any of the Registration Statement that are not described or filed as
required by the Act; and there are no relationships or transactions with
management or affiliates of the Partnership that are required to be
described in the Registration Statement or the Final Prospectus that are
not so described as required by the Act;
(x) The Ferrellgas Parties and their subsidiaries have good and
marketable title to all real property and good title to all personal
property described in the Final Prospectus as being owned by them, free and
clear of all liens, claims, security interests or other encumbrances except
(i) as such use is described in the Final Prospectus or (ii) such as do not
materially interfere with the use of such properties, taken as a whole, as
such use is described in the Final Prospectus, including liens, claims,
security interests and other encumbrances pursuant to mortgage and/or
security agreements given as security for certain non-compete agreements
with the prior owners of certain businesses previously acquired by the
Ferrellgas Parties and their subsidiaries; and all real property and
buildings held under lease by any of the Ferrellgas Parties or any of their
subsidiaries are held under valid and subsisting and enforceable leases
with such exceptions as do not materially interfere with the use of such
properties, taken as a whole, as such use is described in the Final
Prospectus;
(y) Except as disclosed in the Final Prospectus, and except as would
not have a material adverse effect upon the business, prospects, financial
condition or results of operations of the Ferrellgas Parties, taken as a
whole, (i) none of the Ferrellgas Parties or their subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code or rule of common law, including any judicial
or administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, --------------------
treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, "Environmental -------------- Laws"), (ii) the Ferrellgas
Parties and their subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (iii) there are no pending or, to the
knowledge of the Ferrellgas Parties, threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Ferrellgas Parties or any of their
subsidiaries or any of their respective properties, and (iv) there are no
events or circumstances that might reasonably be expected to form the basis
of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against the Ferrellgas
Parties or any of their subsidiaries or any of their respective properties
relating to Hazardous Materials or any Environmental Laws;
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
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(z) None of the Ferrellgas Parties has taken, and none of such
entities shall take any action that would result in a violation of Section
242.102 of Regulation M promulgated under the Exchange Act in connection
with the sale of the Common Units;
(aa) Deloitte & Touche LLP, who have certified certain financial
statements of the Partnership and the General Partner included in the
Registration Statement and the Final Prospectus, are independent public
accountants with respect to the Partnership and the General Partner as
required by the Act;
(bb) Each of the Ferrellgas Parties is, and after giving effect to the
offering and the sale of the Units, will be, exempt from regulation as an
"investment company," a person "controlled by" an "investment company" or
an "affiliated person" of or "promoter" or "principal underwriter" for an
"investment company," as such terms are defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act");
(cc) Each of the Ferrellgas Parties is, and after giving effect to the
offering and the sale of the Units, will be, exempt from regulation as a
"holding company" or a "subsidiary company" of a "holding company" thereof
within the meaning of the Public Utility Holding Company Act of 1935, as
amended;
(dd) The Partnership maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary (A) to permit
preparation of financial statements in conformity with generally accepted
accounting principles or any other criteria applicable to such statements
and (B) to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences; the Partnership has established and
maintains "disclosure controls and procedures" (as such terms are defined
in Rule 13a-14 and 15d-14 under the Exchange Act); such disclosure controls
and procedures are designed to ensure that material information relating to
the Partnership, including its consolidated subsidiaries, is made known to
the General Partner's Chief Executive Officer and Chief Financial Officer
by others within the General Partner, and such disclosure controls and
procedures are effective to ensure that material information relating to
the Partnership, including its consolidated subsidiaries, is made known to
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-11-
the General Partner's Chief Executive Officer and Chief Financial Officer
by others within the General Partner; the Partnership's auditors and the
Audit Committee of the Board of Directors of the General Partner have been
advised of: (i) any significant deficiencies in the design or operation of
internal controls which could adversely affect the Partnership's ability to
record, process, summarize, and report financial data; and (ii) any fraud,
whether or not material, that involves management or other employees who
have a role in the Partnership's internal controls; any material weaknesses
in internal controls have been identified for the Partnership's auditors;
and since the date of the most recent evaluation of the effectiveness of
the design and operation of the Partnership's disclosure controls and
procedures, there have been no significant changes in internal controls or
in other factors that could significantly affect internal controls,
including no corrective actions with respect to significant deficiencies
and material weaknesses in the Partnership's internal controls; the
Partnership, and, to the knowledge of the Ferrellgas Parties, the directors
and officers of the General Partner in their capacities as such, are
otherwise in compliance in all material respects with all applicable
effective provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated thereunder by the Commission; and
(ee) Subject to the provisions of Sections 13(k)(2) and (3) of the
Exchange Act and since July 30, 2002, the Partnership has not, directly or
indirectly, including through any subsidiary, extended credit, arranged to
extend credit, or renewed any extension of credit, in the form of a
personal loan, to or for any director or executive officer of the General
Partner; except, with respect to any extension of credit maintained by the
Partnership on July 30, 2002, for which there has been no material
modification to any term of any such extension of credit or any renewal of
such extension of credit on or after July 30, 2002.
4. Certain Covenants of the Partnership. Each of the Partnership and the
General Partner hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Units for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Units; provided that the Partnership shall not be
required to qualify as a foreign partnership or to consent to the service
of process under the laws of any such state (except service of process with
respect to the offering and sale of the Units); and to promptly advise you
of the receipt by the Partnership of any notification with respect to the
suspension of the qualification of the Units for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose;
(b) during the period of time referred to in the second sentence in
sub-paragraph (e) below, to advise you and counsel for the Underwriters
promptly and, if requested by you, to confirm such advice in writing: (i)
of any request by the Commission for amendment of or a supplement to any of
the Registration Statement, the Basic Prospectus, the Preliminary
Prospectus or the Final Prospectus or for additional information; (ii) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Units for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii) of any change in
the business, prospects, financial condition or results of operations of
any of the Ferrellgas Parties, or of the happening of any event, which
makes any statement of a material fact made in the Registration Statement,
the Preliminary Prospectus or the Final Prospectus (as then amended or
supplemented) untrue or that requires the making of any additions to or
changes in the Registration Statement, the Preliminary Prospectus or the
Final Prospectus (as then amended or supplemented) in order to state a
material fact required by the Act to be stated therein or necessary in
order to make the statements therein not misleading, or of the necessity to
amend or supplement the Preliminary Prospectus or the Final Prospectus (as
then amended or supplemented) to comply with the Act or any other law. If
at any time within the period of time referred to in the second sentence in
sub-paragraph (e) below, the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Partnership
and the General Partner will make every reasonable effort to obtain the
withdrawal of such order at the earliest possible time;
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
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(c) to furnish to you, at your request and without charge, (i) one
signed copy of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements
and all exhibits to the Registration Statement, (ii) such number of
conformed copies of the Registration Statement as originally filed and of
each amendment thereto, but without exhibits, as you may request, (iii)
such number of copies of the Incorporated Documents, without exhibits, as
you may request, and (iv) such number of copies of the exhibits to the
Incorporated Documents as you may request;
(d) prior to the end of the period of time referred to in the second
sentence in sub-paragraph (e) below, not to file any amendment to the
Registration Statement or make any amendment or supplement to the
Preliminary Prospectus or the Final Prospectus, or file any document that,
upon filing, becomes an Incorporated Document, of which you and counsel for
the Underwriters shall not previously have been advised or to which, after
you and counsel for the Underwriters shall have received a copy of the
document proposed to be filed, you shall reasonably object; provided that
your consent shall not be unreasonably withheld or delayed;
(e) to cause the Final Prospectus to be filed pursuant to, and in
compliance with, Rule 424(b). As soon after the execution and delivery of
this Agreement as possible and thereafter from time to time for such period
as in the opinion of counsel for the Underwriters a prospectus is required
by the Act to be delivered in connection with sales of the Units by the
Underwriters or dealer, the Partnership and the General Partner will
expeditiously deliver to the Underwriters and each dealer, without charge,
as many copies of the Final Prospectus (and of any amendment or supplement
thereto) as you may reasonably request. The Partnership and the General
Partner consent to the use of the Preliminary Prospectus or the Final
Prospectus (and of any amendment or supplement thereto) in accordance with
the provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Units are offered by Underwriters and by all
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-13-
dealers to whom Units may be sold, both in connection with the offering and
sale of the Units and for such period of time thereafter as the Final
Prospectus is required by the Act to be delivered in connection with sales
of the Units by the Underwriters or dealer. If during such period of time
any event shall occur that in the judgment of the Partnership or the
General Partner or in the opinion of counsel for the Underwriters is
required to be set forth in the Final Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary to supplement or amend the
Final Prospectus (or to file under the Exchange Act any document that, upon
filing, becomes an Incorporated Document) in order to comply with the Act
or any other law, the Partnership and the General Partner will forthwith
prepare and, subject to the provisions of sub-paragraph (d) above, file
with the Commission an appropriate supplement or amendment thereto (or to
such document), and will expeditiously furnish to the Underwriters and
dealers a reasonable number of copies thereof. In the event that the
Partnership or the General Partner and the Underwriters agree that the
Final Prospectus should be amended or supplemented, the Partnership and the
General Partner, if requested by you, will promptly issue a press release
announcing or disclosing the matters to be covered by the proposed
amendment or supplement;
(f) to make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
"effective date of the Registration Statement" (as defined in Rule 158(c)
of the Act), an earnings statement of the Partnership (which need not be
audited) complying with Section 11(a) of the Act;
(g) to apply the net proceeds from the sale of the Units in the manner
set forth under the caption "Use of Proceeds" in the Final Prospectus;
(h) not to issue, sell, offer or agree to sell, contract to sell,
grant any option to sell or otherwise dispose of, directly or indirectly,
any Common Units or securities convertible into or exchangeable or
exercisable for Common Units (including, but not limited to, any Senior
Units) or warrants or other rights to purchase Common Units or any other
securities of the Partnership that are substantially similar to Common
Units or permit the registration under the Act of any Common Units or
Senior Units, except for the registration of the Units and the sales to the
Underwriters pursuant to this Agreement and except for (i) issuances of
Common Units upon the exercise of outstanding options, (ii) the issuance of
Common Units upon conversion of Senior Units as required by lenders to whom
the Senior Units are pledged, (iii) the registration of Senior Units or
Common Units issued upon conversion of Senior Units as required by lenders
to whom the Senior Units are pledged, or (iv) issuances of Common Units in
connection with the acquisition of assets, businesses or the capital stock
or other ownership of businesses by the Partnership or the Operating
Partnership if the recipient(s) of such Common Units agree in writing to
substantially similar terms to the terms of the letters referred to in
Section 6(i) of this Agreement during the balance of the period covered by
those letters, which agreement shall name the Underwriters as an intended
beneficiary, for a period of ninety days after the date hereof, without the
prior written consent of Citigroup;
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-14-
(i) to use its best efforts to cause the Common Units to be listed on
the New York Stock Exchange ("NYSE"); and
(j) to pay all expenses, fees and taxes (other than any transfer taxes
and fees and disbursements of counsel for the Underwriters except as set
forth under Section 5 hereof or (iii) below) in connection with (i) the
preparation and filing of the Registration Statement, the Preliminary
Prospectus, the Final Prospectus, and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment), (ii)
the issuance, sale and delivery of the Units by the Partnership, (iii) the
qualification of the Units for offering and sale under state laws and the
determination of their eligibility for investment under state law as
aforesaid (including the legal fees and filing fees and other disbursements
of counsel to the Underwriters) and the printing and furnishing of copies
of any blue sky surveys or legal investment surveys to the Underwriters and
to dealers, (iv) any listing of the Units on any securities exchange and
any registration thereof under the Exchange Act, (v) the filing for review
of the public offering of the Units by the National Association of
Securities Dealers, Inc., and (vi) the performance of the Partnership's
other obligations hereunder.
5. Reimbursement of Underwriters' Expenses. If the Units are not delivered
for any reason other than the termination of this Agreement pursuant to the
first two paragraphs of Section 7 or the fifth paragraph of Section 8 hereof,
the Partnership shall, in addition to paying the amounts described in Section
4(j) hereof, reimburse the Underwriters for all of their out-of-pocket expenses,
including the fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties set forth in this Agreement on the part of the Partnership on the
date hereof and at the time of purchase (and the obligations of the Underwriters
at the additional time of purchase are subject to the accuracy of the
representations and warranties set forth in this Agreement on the part of the
Partnership on the date hereof and at the time of purchase (unless previously
waived) and at the additional time of purchase, as the case may be), the
performance by the Partnership of its obligations hereunder and to the following
additional conditions precedent:
(a) The Partnership shall furnish to you at the time of purchase and
at the additional time of purchase, as the case may be, an opinion of
Mayer, Brown, Rowe & Maw LLP, counsel for the Partnership, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form satisfactory to Vinson & Elkins L.L.P., counsel
for the Underwriters, stating that:
(i) Each of the Partnership and the Operating Partnership has
been duly formed and is validly existing as a limited partnership
under the Delaware Act, with power and authority to own or lease its
properties and to conduct its business as described in the Final
Prospectus;
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
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(ii) The General Partner has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware, with corporate power and authority to own or
lease its properties, to conduct its businesses and to act as general
partner of the Partnership and of the Operating Partnership, in each
case as described in the Final Prospectus;
(iii) The Partnership is duly qualified or registered as a
foreign limited partnership for the transaction of business and is in
good standing under the laws of the State of Missouri;
(iv) The Operating Partnership is duly qualified or registered as
a foreign limited partnership for the transaction of business and is
in good standing under the laws of the State of Missouri;
(v) The General Partner is duly qualified or registered as a
foreign corporation for the transaction of business and is in good
standing under the laws of the State of Missouri;
(vi) The General Partner is the sole general partner of the
Partnership and the Operating Partnership with a general partner
interest in the Partnership of 1.0% and a general partner interest in
the Operating Partnership of 1.0101%; such general partner interests
have been duly authorized and validly issued and are fully paid, and
are owned by the General Partner free and clear of all liens,
encumbrances, charges or claims of record (A) in respect of which a
financing statement under the Uniform Commercial Code of the State of
Delaware naming the General Partner as debtor is on file in the office
of the Secretary of State of the State of Delaware or (B) otherwise
known to such counsel, other than those created by or arising under
the Delaware Act;
(vii) The Partnership is the sole limited partner of the
Operating Partnership, with a limited partner interest of 98.9899%;
such limited partner interest has been duly authorized and validly
issued and is fully paid and non-assessable (except as
non-assessability may be affected by certain provisions of the
Delaware Act); and, the Partnership owns such limited partner interest
in the Operating Partnership free and clear of all liens,
encumbrances, charges or claims of record (A) in respect of which a
financing statement under the Uniform Commercial Code of the State of
Delaware naming the Partnership as debtor is on file in the office of
the Secretary of State of the State of Delaware or (B) otherwise known
to such counsel, other than those created by or arising under the
Delaware Act or disclosed in the Final Prospectus;
(viii) The Firm Units issued to the Underwriters, including any
Additional Units that may be issued at the time of purchase or the
additional time of purchase, as the case may be, and the limited
partner interests represented thereby have been duly authorized and,
when issued and delivered against payment therefor as provided herein,
will be validly issued, fully paid and non-assessable (except as
non-assessability may be affected by certain provisions of the
Delaware Act);
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-16-
(ix) Except as disclosed in the Final Prospectus, there are no
preemptive rights or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any limited partner
interests in the Partnership or the Operating Partnership pursuant to
either of the Partnership Agreements or other governing documents or
any agreement or other instrument identified in any exhibit list to
the Incorporated Documents to which the Partnership or the Operating
Partnership is a party or by which either of them is bound (except, in
the case of restrictions upon voting or transfer, where such
restrictions would not subject the Partnership or the holders of
Common Units to any material liability or disability);
(x) The Partnership Agreement, the Operating Partnership
Agreement and this Agreement have been duly authorized, executed and
delivered by each of the Ferrellgas Parties, as the case may be and
each of the Partnership Agreement and the Operating Partnership
Agreement constitutes a valid and legally binding agreement of each of
the Ferrellgas Parties, as the case may be, enforceable against such
person, as the case may be, in accordance with their respective terms,
in each case, subject to (A) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, (B) limitations imposed by public policy,
applicable law relating to fiduciary duties and the judicial
imposition of an implied covenant of good faith and fair dealing and
(C) limitations under federal or state securities laws with respect to
the rights to indemnification or contribution thereunder;
(xi) The statements set forth in the Final Prospectus under the
caption "Description of Common Units, Senior Units and Deferred
Participation Units" insofar as they purport to constitute summaries
of the terms of the Common Units, Senior Units and Deferred
Participation Units, and under the captions "Tax Consequences"and "Tax
Considerations" insofar as they describe the provisions of the
documents therein described, are accurate, complete and fair summaries
in all material respects;
(xii) The issuance and sale of the Units by the Partnership and
the execution, delivery and performance by the Ferrellgas Parties of
this Agreement and the consummation by each of the Ferrellgas Parties
of the transactions contemplated hereby will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument identified in any
exhibit list to the Incorporated Documents, nor will such action
result in any breach of the provisions of the Partnership Agreement or
the Operating Partnership Agreement or of the charter or bylaws of any
of the Ferrellgas Parties or, to the knowledge of such counsel,
violate any federal law of the United States or any rules or
regulations adopted by a governmental agency thereof applicable to the
Ferrellgas Parties, excluding in each case any violations which,
individually or in the aggregate, would not have a material adverse
effect upon the holders of Common Units or on the business, prospects,
financial condition or results of operations of any of the Ferrellgas
Parties, taken as a whole; provided, however, that, for the purposes
of this sub-paragraph (xii), no opinion is expressed with respect to
federal or state securities laws, other antifraud laws and fraudulent
transfer laws;
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-17-
(xiii) No consent, approval, authorization, order, registration
or qualification of or with any United States federal court or
governmental agency or body having jurisdiction over any of the
Ferrellgas Parties or any of their properties is required for the
issuance and sale of the Units by the Partnership or for the
consummation by the Ferrellgas Parties of the transactions
contemplated by this Agreement, except in each case for such consents,
approvals, authorizations, orders, registrations or qualifications (A)
as have been obtained, (B) as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of
the Units by the Underwriters or (C) the failure of which to obtain
would not, individually or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Ferrellgas Parties, taken as a whole;
(xiv) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened against any of the
Ferrellgas Parties or to which any property of any of them is subject
that would be required to be disclosed in the Final Prospectus and are
not so disclosed;
(xv) Each of the Ferrellgas Parties is exempt from regulation as
an "investment company," a person "controlled by" an "investment
company" or an "affiliated person" of or "promoter" or "principal
underwriter" for an "investment company," as such terms are defined in
the Investment Company Act;
(xvi) Each of the Ferrellgas Parties is exempt from regulation as
a "holding company" or a "subsidiary company" of a "holding company"
thereof within the meaning of the Public Utility Holding Company Act
of 1935, as amended;
(xvii) The Registration Statement has been declared effective by
the Commission under the Act; and to the knowledge of such counsel no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission; and
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-18-
(xviii) The Registration Statement and the Final Prospectus and
any further amendments and supplements thereto made by the Partnership
prior to the time of purchase or the additional time of purchase, as
the case may be, (other than the financial statements and related
schedules and other financial data contained therein, as to which such
counsel need express no opinion) appear on their face to comply as to
form in all material respects with the requirements of the Act.
Such counsel shall also deliver a letter to the effect that they have
participated in conferences with officers and other representatives of the
Partnership, representatives of the independent public accountants of the
Partnership and representatives and counsel of the Underwriters at which the
contents of the Registration Statement and the Final Prospectus and related
matters were discussed and based on such participation and review, although such
counsel is not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Final Prospectus and such counsel has made no independent check
or verification thereof (except as and to the extent stated in sub-paragraph
(xi) above), on the basis of the foregoing no facts have come to such counsel's
attention that have caused them to believe that (A) the Registration Statement
at the time such Registration Statement became effective and as of the time of
purchase or the additional time of purchase, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
(B) the Final Prospectus, as of its date and as of the time of purchase or the
additional time of purchase, as the case may be, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (C) any amendment
or supplement to the Final Prospectus, as of its respective date, and as of the
time of purchase or the additional time of purchase, as the case may be,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to the
financial statements and schedules and other financial data included in the
Registration Statement or Final Prospectus).
In addition, such counsel shall have furnished to you their written
opinion, dated as of the time of purchase or the additional time of purchase, as
the case may be, in form and substance satisfactory to you in your reasonable
judgment, (A) that the statements in the Final Prospectus under the captions
"Tax Consequences" and "Tax Considerations," insofar as such statements
constitute legal conclusions, have been reviewed by such counsel and fairly and
accurately present and summarize, in all material respects as of the date of
this opinion, the matters referred to therein and (B) that based upon the
representations of the Partnership and the General Partner, after the merger of
Blue Rhino LLC with and into the Operating Partnership, at least 90% of the
Partnership's gross income will constitute income that, in the opinion of
counsel, is "qualifying income" within the meaning of Section 7704(d) of the
Internal Revenue Code of 1996, as amended; provided that for purposes of the
opinions in clauses (A) and (B) above, such counsel shall be able to rely on
customary exceptions, qualifications and assumptions for opinions of this type.
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-19-
In rendering such opinions, and in addition to those permitted reliances
described in the immediately preceding paragraph, such counsel may (A) rely in
respect of matters of fact upon certificates of the Partnership and the
Operating Partnership and of officers and employees of the General Partner and
Ferrell and upon information obtained from public officials, and may assume that
the signatures on all documents examined by such counsel are genuine, (B) state
that their opinions are limited to federal laws, the Delaware Act and the
Delaware General Corporation Law and (C) state that they express no opinion with
respect to state or local tax statutes to which any of the limited partners of
the Partnership or any of the Ferrellgas Parties may be subject.
(b) You shall have received from Deloitte & Touche LLP, letters dated,
respectively, the date of this Agreement and the time of purchase and
additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for the Underwriters) in the forms
heretofore approved by the Underwriters.
(c) You shall have received from Ernst & Young LLP, letters dated,
respectively, the date of this Agreement and the time of purchase and
additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for the Underwriters) in the forms
heretofore approved by the Underwriters.
(d) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion of
Vinson & Elkins L.L.P., counsel for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, with
respect to such matters as may be reasonably requested by the Underwriters.
(e) All filings, if any, required by Rule 424(b) shall have been
timely made; and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(f) (i) None of the Ferrellgas Parties shall have sustained since the
date of the latest audited financial statements included or incorporated by
reference in the Final Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Final Prospectus, and (ii) since the respective dates as of which
information is given in the Final Prospectus there shall not have been any
change in the capitalization or long-term debt of the Ferrellgas Parties,
taken as a whole, or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, security holders' equity or results of operations of the
Ferrellgas Parties, taken as a whole, otherwise than as set forth or
contemplated in the Final Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Common Units being delivered at such
time of purchase on the terms and in the manner contemplated in the Final
Prospectus;
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-20
(g) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Partnership's or the Operating Partnership's
debt securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Partnership's or the
Operating Partnership's debt securities;
(h) There shall have been furnished to you at such time of purchase
certificates satisfactory to you, signed on behalf of the General Partner
by the President or a Vice President thereof and on behalf of the
Partnership by the General Partner by an authorized officer thereof to the
effect that:
(i) In the case of the Partnership (A) the representations and
warranties of the Partnership contained in this Agreement are true and
correct at and as of such time of purchase as though made at and as of
such time of purchase; (B) the Partnership has duly performed all
obligations required to be performed by it pursuant to the terms of
this Agreement at or prior to such time of purchase; (C) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been initiated or, to
the knowledge of the Ferrellgas Parties, threatened by the Commission,
and all requests for additional information on the part of the
Commission have been complied with or otherwise satisfied; (D) the
Units have been duly listed, subject only to official notice of
issuance, on the NYSE; and (E) no event contemplated by subsection (g)
of this Section 6 in respect of the Partnership or the Operating
Partnership shall have occurred; and
(ii) In the case of the General Partner (A) the representations
and warranties of the General Partner contained in this Agreement are
true and correct at and as of such time of purchase as though made at
and as of such time of purchase; and (B) the General Partner has duly
performed all obligations required to be performed by it pursuant to
the terms of this Agreement at or prior to such time of purchase.
(i) You shall have received letters from each of the directors and
officers of the General Partner and certain of its affiliates, including
Ferrell and JEF Capital Management, Inc., to the effect that such persons
shall not sell, offer or agree to sell, contract to sell, grant any option
to sell or otherwise dispose of, directly or indirectly, any Common Units
or securities convertible into or exchangeable or exercisable for Common
Units (including, but not limited to, any Senior Units) or warrants or
other rights to purchase Common Units or any other securities of the
Partnership that are substantially similar to the Common Units for a period
of [90] days after the date of the Final Prospectus without the prior
written consent of Citigroup; and
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-21-
(j) The Units shall have been approved for listing on the NYSE,
subject only to official notice of issuance at or prior to the time of
purchase or the additional time of purchase, as the case may be.
7. Effective Date of Agreement; Termination. This Agreement shall become
effective when the parties hereto have executed and delivered this Agreement.
The obligations of the Underwriters hereunder shall be subject to
termination in the absolute discretion of Citigroup or any group of Underwriters
(which may include Citigroup) which has agreed to purchase in the aggregate at
least 50% of the Firm Units, if (x) since the time of execution of this
Agreement or the earlier respective dates as of which information is given in
the Registration Statement and the Final Prospectus, there has been any material
adverse and unfavorable change, financial or otherwise, in the operations,
business, condition or prospects of the Partnership and the Operating
Partnership taken as a whole, which would, in Citigroup's judgment or in the
judgment of such group of Underwriters, make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Units on the terms or in
the manner contemplated in the Final Prospectus, or (y) since the time of
execution of this Agreement, there shall have occurred any downgrading, or any
notice shall have been given of (i) any intended or potential downgrading or
(ii) any watch, review or possible change that does not indicate an affirmation
or improvement, in the rating accorded any securities of or guaranteed by the
Partnership or the Operating Partnership by any "nationally recognized
statistical rating organization," as that term is defined in Rule 436(g)(2)
under the Act or, (z) since the time of execution of this Agreement, there shall
have occurred: (i) a suspension or material limitation in trading in securities
generally on the NYSE, the American Stock Exchange or the NASDAQ National
Market; (ii) a suspension or material limitation in trading in the Partnership's
securities on the NYSE; (iii) a general moratorium on commercial banking
activities declared by either federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) an outbreak or escalation of hostilities or
acts of terrorism involving the United States or a declaration by the United
States of a national emergency or war; or (v) any other calamity or crisis or
any change in financial, political or economic conditions in the United States
or elsewhere, if the effect of any such event specified in clause (iv) or (v)
above in Citigroup's judgment or in the judgment of such group of Underwriters
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Units on the terms and in the manner contemplated in the Final
Prospectus.
If Citigroup or any group of Underwriters elects to terminate this
Agreement as provided in this Section 7, the Partnership and each other
Underwriter shall be notified promptly by letter or telegram.
If the sale to the Underwriters of the Units, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Partnership shall
be unable to comply with any of the terms of this Agreement, the Partnership
shall not be under any obligation or liability under this Agreement (except to
the extent provided in Sections 4(j), 5 and 9 hereof), and the Underwriters
shall be under no obligation or liability to the Partnership under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-22-
8. Increase in Underwriters' Commitments. Subject to Sections 6 and 7
hereof, if any Underwriter shall default in its obligation to take up and pay
for the Firm Units to be purchased by it hereunder (otherwise than for a failure
of a condition set forth in Section 6 hereof or a reason sufficient to justify
the termination of this Agreement under the provisions of Section 7 hereof) and
if the number of Firm Units that all Underwriters so defaulting shall have
agreed but failed to take up and pay for does not exceed 10% of the total number
of Firm Units, the non-defaulting Underwriters shall take up and pay for (in
addition to the aggregate number of Firm Units they are obligated to purchase
pursuant to Section 1 hereof) the number of Firm Units agreed to be purchased by
all such defaulting Underwriters, as hereinafter provided. Such Units shall be
taken up and paid for by such non-defaulting Underwriters in such amount or
amounts as you may designate with the consent of each Underwriter so designated
or, in the event no such designation is made, such Units shall be taken up and
paid for by all non-defaulting Underwriters pro rata in proportion to the
aggregate number of Firm Units set opposite the names of such non-defaulting
Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Partnership agrees with the non-defaulting Underwriters that it
will not sell any Firm Units hereunder unless all of the Firm Units are
purchased by the Underwriters (or by substituted Underwriters selected by you
with the approval of the Partnership or selected by the Partnership with your
approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or
by the Partnership for a defaulting Underwriter or Underwriters in accordance
with the foregoing provision, the Partnership or you shall have the right to
postpone the time of purchase for a period not exceeding five business days in
order that any necessary changes in the Registration Statement, the Preliminary
Prospectus, the Final Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and include
any Underwriter substituted under this Section 8 with like effect as if such
substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Firm Units which the defaulting Underwriter or
Underwriters agreed to purchase exceeds 10% of the total number of Firm Units
which all Underwriters agreed to purchase hereunder, and if neither the
non-defaulting Underwriters nor the Partnership shall make arrangements within
the five business day period stated above for the purchase of all the Firm Units
which the defaulting Underwriter or Underwriters agreed to purchase hereunder,
this Agreement shall terminate without further act or deed and without any
liability on the part of the Partnership to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Partnership. Nothing in this paragraph, and no action taken hereunder, shall
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-23-
9. Indemnity and Contribution.
(a) The Ferrellgas Parties agree, jointly and severally, to indemnify,
defend and hold harmless each Underwriter, its partners, directors and
officers, and any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and the successors
and assigns of all of the foregoing persons from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriters or any
such person may incur under the Act, the Exchange Act, common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue statement of
a material fact contained in the Preliminary Prospectus or the Final
Prospectus or in the Registration Statement or in any amendment or
supplement thereto, or arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements made therein not misleading, except
insofar as any such loss, damage, expense, liability or claim arises out of
or is based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information concerning
such Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Partnership expressly for use in such Registration
Statement, such Preliminary Prospectus, or such Final Prospectus or arises
out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in
such Registration Statement, such Preliminary Prospectus, or such Final
Prospectus or necessary to make such information not misleading.
If any action, suit or proceeding (together, a "Proceeding") is
brought against an Underwriter or any such person in respect of which
indemnity may be sought against the Ferrellgas Parties pursuant to the
foregoing paragraph, such Underwriter or such person shall promptly notify
the Ferrellgas Parties in writing of the institution of such Proceeding and
the Ferrellgas Parties shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided, however,
that the omission to so notify the Ferrellgas Parties shall not relieve the
Ferrellgas Parties from any liability which the Ferrellgas Parties may have
to any Underwriter or any such person or otherwise. Such Underwriter or
such controlling person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall
be at the expense of such Underwriter or of such person unless the
employment of such counsel shall have been authorized in writing by the
Ferrellgas Parties in connection with the defense of such Proceeding or the
Ferrellgas Parties shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to have charge of the defense
of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them
which are different from, additional to or in conflict with those available
to the Ferrellgas Parties (in which case the Ferrellgas Parties shall not
have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties but the Ferrellgas Parties may employ counsel
and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of the Ferrellgas Parties), in any of which
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-24-
events the reasonable fees and expenses shall be borne by the Ferrellgas
Parties and paid as incurred (it being understood, however, that the
Ferrellgas Parties shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one Proceeding
or series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The Ferrellgas
Parties shall not be liable for any settlement of any such Proceeding
effected without its written consent but if settled with the written
consent of the Ferrellgas Parties, the Ferrellgas Parties agree to
indemnify and hold harmless any Underwriter and any such person from and
against any loss or liability by reason of such settlement. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for
any settlement of any Proceeding effected without its written consent if
(i) such settlement is entered into more than 60 business days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii)
such indemnified party shall have given the indemnifying party at least 30
days' prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such Proceeding and does
not include an admission of fault, culpability or a failure to act, by or
on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Ferrellgas Parties, their partners, directors and officers and
any person who controls the Ferrellgas Parties within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and the successors
and assigns of all of the foregoing persons, from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Ferrellgas Parties or any
such person may incur under the Act, the Exchange Act, common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue statement of
a material fact contained in and in conformity with information concerning
such Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Partnership expressly for use in the Registration
Statement, the Preliminary Prospectus, the Final Prospectus or any
amendment or supplement thereto, or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with
such information required to be stated in such Registration Statement,
Preliminary Prospectus, Final Prospectus or any amendment or supplement
thereto or necessary to make such information not misleading; provided,
however, that the indemnity agreement contained in this subsection (b) with
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-25-
respect to the Preliminary Prospectus (or any amendment or supplement
thereto) shall not inure to the benefit of any of the Ferrellgas Parties
(or to the benefit of any person controlling the Ferrellgas Parties) with
respect to a person asserting any such loss, damage, expense, liability or
claim that purchased the Units that are the subject thereof if the Final
Prospectus corrected any such alleged untrue statement or omission and if
(x) such Underwriter sent or gave a copy of the Final Prospectus to such
person at or prior to the written confirmation of the sale of such Units to
such person, or (y) such Underwriter failed to send or give a copy of the
Final Prospectus to such person at or prior to the written confirmation of
the sale of such Units and the failure of such Underwriter to send or give
a copy of the Final Prospectus to such person at or prior to the written
confirmation of the sale of such Units was the result of non-compliance by
the Partnership and the General Partner with sub-paragraph (b) of Section 4
hereof. The Ferrellgas Parties acknowledge that the statements set forth in
the last paragraph of the cover page of the Final Prospectus regarding
delivery of the Units and, under the heading "Underwriting," (i) the
sentences related to concessions and reallowances and (ii) the paragraph
related to stabilization in the Preliminary Prospectus and the Final
Prospectus constitute the only information furnished in writing by or on
behalf of the Underwriters for inclusion in the Preliminary Prospectus or
the Final Prospectus.
If any Proceeding is brought against the Ferrellgas Parties or any
such person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Ferrellgas Parties or
such person shall promptly notify such Underwriter in writing of the
institution of such Proceeding and such Underwriter shall assume the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and
expenses, provided, however, that the omission to so notify such
Underwriter shall not relieve such Underwriter, from any liability which
such Underwriter may have to the Ferrellgas Parties or any such person or
otherwise. The Ferrellgas Parties or such person shall have the right to
employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Ferrellgas Parties or such person
unless the employment of such counsel shall have been authorized in writing
by such Underwriter in connection with the defense of such Proceeding or
such Underwriter shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to have charge of the defense
of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them
which are different from or additional to or in conflict with those
available to such Underwriter (in which case such Underwriter shall not
have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties, but such Underwriter may employ counsel and
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), in any of which
events the reasonable fees and expenses shall be borne by such Underwriter
and paid as incurred (it being understood, however, that such Underwriter
shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties
who are parties to such Proceeding). No Underwriter shall be liable for any
settlement of any such Proceeding effected without the written consent of
such Underwriter but if settled with the written consent of such
Underwriter, such Underwriter agrees to indemnify and hold harmless the
Ferrellgas Parties and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-26-
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second sentence of this paragraph, then
the indemnifying party agrees that it shall be liable for any settlement of
any Proceeding effected without its written consent if (i) such settlement
is entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified
party shall have given the indemnifying party at least 30 days' prior
notice of its intention to settle. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened Proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such Proceeding and does not include
an admission of fault, culpability or a failure to act, by or on behalf of
such indemnified party.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
damages, expenses, liabilities or claims (i) in such proportion as is
appropriate to reflect the relative benefits received by the Ferrellgas
Parties on the one hand and the Underwriters on the other hand from the
offering of the Units or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law or if the indemnified party failed
to give the notice specified in clause (a) or (b) above, as applicable, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Ferrellgas Parties on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Ferrellgas
Parties on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportion as the total proceeds from the
offering (before deducting expenses) received by the Ferrellgas Parties and
the total underwriting discounts and commissions received by the
Underwriters, bear to the aggregate public offering price of the Units. The
relative fault of the Ferrellgas Parties on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission relates to information
supplied by the Ferrellgas Parties or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable
by a party as a result of the losses, damages, expenses, liabilities and
claims referred to in this subsection shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection
with investigating, preparing to defend or defending any claim or
Proceeding.
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-27-
(d) The Ferrellgas Parties and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in
subsection (c) above. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Units underwritten by such
Underwriter and distributed to the public were offered to the public
exceeds the amount of any damage which such Underwriter has otherwise been
required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the
Ferrellgas Parties contained in this Agreement shall remain in full force
and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors and officers or any person (including
each partner, officer or director of such person) who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, or by or on behalf of the Ferrellgas Parties, their
directors or officers or any person who controls the Ferrellgas Parties
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, and shall survive any termination of this Agreement or the issuance
and delivery of the Units. The Ferrellgas Parties and each Underwriter
agree promptly to notify each other of the commencement of any Proceeding
against it and, in the case of the Ferrellgas Parties, against any of the
Ferrellgas Parties' officers or directors in connection with the issuance
and sale of the Units, or in connection with the Registration Statement,
the Base Prospectus, the Preliminary Prospectus, or the Final Prospectus.
10. Notices. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to the
Underwriters, shall be sufficient in all respects if delivered or sent to
Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York 10013,
Attention: General Counsel, and, if to the Ferrellgas Parties, shall be
sufficient in all respects if delivered or sent to the Partnership at the
offices of the Partnership at One Liberty Plaza, Liberty, Missouri 64068,
Attention: Chief Financial Officer.
11. Governing Law; Construction. This Agreement and any claim, counterclaim
or dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement ("Claim"), directly or indirectly, shall be governed
by, and construed in accordance with, the laws of the State of New York. The
Section headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-28-
12. Entire Agreement; Amendments and Waivers. This Agreement constitutes
the entire agreement between the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties, and there are no
warranties, representations or other agreements between the parties in
connection with the subject matter hereof except as set forth specifically
herein or contemplated hereby. No supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. The failure of a party to exercise any right or remedy shall not be
deemed or constitute a waiver of such right or remedy in the future. No waiver
of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (regardless of whether similar), nor shall
any such waiver constitute a continuing waiver unless otherwise expressly
provided. Each party to this Agreement agrees that (i) no other party to this
Agreement (including its agents and representatives) had made any
representation, warranty, covenant or agreement to or with such party relating
to the transactions contemplated hereby, other than those expressly set forth
herein, and (ii) such party has not relied upon any representation, warranty,
covenant or agreement relating to the transactions contemplated hereby, other
than those referred to in clause (i) above.
13. Submission to Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Underwriters
and the Ferrellgas Parties consent to the jurisdiction of such courts and
personal service with respect thereto. The Underwriters and the Ferrellgas
Parties hereby consent to personal jurisdiction, service and venue in any court
in which any Claim arising out of or in any way relating to this Agreement is
brought by any third party against any Underwriter or any indemnified party.
Each of the Underwriters and the Ferrellgas Parties (on their behalf and, to the
extent permitted by applicable law, on behalf of their equityholders and
affiliates) waive all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Underwriters and the Ferrellgas
Parties agree that a final judgment in any such action, proceeding or
counterclaim brought in any such court shall be conclusive and binding upon the
Underwriters and the Ferrellgas Parties and may be enforced in any other courts
in the jurisdiction of which they are or may be subject, by suit upon such
judgment.
14. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Ferrellgas Parties and
to the extent provided in Section 9 hereof the controlling persons, partners,
directors and officers referred to in such Section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
15. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
16. Successors and Assigns. This Agreement shall be binding upon the
Underwriters and the Ferrellgas Parties and their successors and assigns and any
successor or assign of any substantial portion of the Partnership's and the
Underwriters' respective businesses and/or assets.
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
-29-
If the foregoing correctly sets forth the understanding among the
Ferrellgas Parties and the Underwriters, please so indicate in the space
provided below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement among the Ferrellgas Parties and the
Underwriters.
Very truly yours,
FERRELLGAS PARTNERS, L.P.
By: FERRELLGAS, INC.,
ITS GENERAL PARTNER
By:/s/ Kevin T. Kelly
---------------------------
Kevin T. Kelly
Chief Financial Officer and
Senior Vice President
FERRELLGAS, L.P.
By: FERRELLGAS, INC.,
ITS GENERAL PARTNER
By:/s/ Kevin T. Kelly
---------------------------
Kevin T. Kelly
Chief Financial Officer and
Senior Vice President
FERRELLGAS, INC.
By:/s/ Kevin T. Kelly
---------------------------
Kevin T. Kelly
Chief Financial Officer and
Senior Vice President
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
Accepted and agreed to as of the date first
above written, on behalf of itself and the
other several Underwriters named in
Schedule A
CITIGROUP GLOBAL MARKETS INC.
By: CITIGROUP GLOBAL MARKETS INC.
By: /s/ Abhay N. Pande
----------------------------------------
Abhay N. Pande
Director - Investment Banking
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
SCHEDULE A
Number of
Underwriter Firm Units
- ----------- ----------
CITIGROUP GLOBAL MARKETS INC......................................... 2,100,000
UBS SECURITIES LLC................................................... 1,540,000
WACHOVIA CAPITAL MARKETS, LLC........................................ 1,260,000
LEHMAN BROTHERS INC.................................................. 840,000
SANDERS MORRIS HARRIS INC............................................ 560,000
BANC OF AMERICA SECURITIES LLC....................................... 350,000
CREDIT SUISSE FIRST BOSTON LLC....................................... 350,000
----------
Total.................... 7,000,000
==========