REGISTRATION RIGHTS AGREEMENT
Dated as of December 17, 1999
by and between
FERRELLGAS PARTNERS, L.P.
and
WILLIAMS NATURAL GAS LIQUIDS, INC.
UNITS REPRESENTING LIMITED PARTNER INTERESTS
of
FERRELLGAS PARTNERS, L.P.
TABLE OF CONTENTS
SECTION 1. Definitions 1
SECTION 2. Shelf Registration 5
SECTION 3. Additional Payments 8
SECTION 4. Registration Procedures 9
SECTION 5. Registration Expenses 14
SECTION 6. Indemnification 15
SECTION 7. Rule 144A 18
SECTION 8. Underwritten Offerings 18
SECTION 9. Miscellaneous 18
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered into as
of December __, 1999, by and between Ferrellgas Partners, L.P., a Delaware
limited partnership (the "Issuer"), and Williams Natural Gas Liquids, Inc., a
Delaware corporation ("Williams").
This Agreement is entered into in connection with the Purchase
Agreement, dated November 7, 1999, as amended (the "Purchase Agreement"), and a
Representations Agreement, dated the date hereof (the "Representations
Agreement"), by and among the Issuer, Ferrellgas L.P., a Delaware limited
partnership, Ferrellgas, Inc., a Delaware corporation, and Williams, relating to
the sale by Williams to the Issuer of Williams' equity interest in Thermogas
L.L.C., a Delaware limited liability company (formerly, Thermogas Company, a
Delaware corporation), in consideration, among other things, of 4,375,000 of the
Issuer's senior convertible units representing limited partner interests, $40.00
liquidation preference per unit (the "Senior Units").
In order to induce Williams to enter into the Purchase Agreement and
the Representations Agreement, the Issuer has agreed to provide the registration
rights set forth in this Agreement for the benefit of the holders of Registrable
Units (as defined), including, without limitation, Williams. The execution and
delivery of this Agreement is a condition to Williams' obligation to consummate
the transactions contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. SECTION Definitions .
As used in this Agreement, the following terms shall have the following
meanings:
Additional Payment Rate: See Section 3(b).
Additional Payments: See Section 3(a).
Additional Senior Units: See Section 5.4 of the Partnership Agreement.
Advice: See the last paragraph of Section 4.
Agreement: See the first introductory paragraph to this Agreement.
Business Day: A day that is not a Saturday, a Sunday, or a day on
which banking institutions in New York, New York are required to be closed.
Closing Date: The Closing Date as defined in the Purchase Agreement.
Closing Price: With respect to the Common Units, the last reported sale
price of the Common Units on such day, or in the case no sale takes place on
such day, the average of the closing bid and asked prices in each case on the
principal national securities exchange on which the Common Units are listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the NASDAQ National Market or any successor national
automated interdealer quotation system or, if the Common Units are not listed or
admitted to trading on any national securities exchange or quoted on the NASDAQ
National Market, the average of the closing bid and asked prices of the Common
Units in the over-the-counter market as furnished by any New York Stock Exchange
member firm selected by the Issuer for such purpose.
Commission: The Securities and Exchange Commission.
Common Units: See Article II of the Partnership Agreement.
Effectiveness Actual Date: With respect to any Registration Statement
referred to in Section 2(a), the actual date such Initial Registration Statement
is declared effective.
Effectiveness Target Date:
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(i) With respect to the Initial Registration Statement referred to in
Section 2(a)(i), the date that is 90 days following the occurrence of a Material
Event; (ii) with respect to the Initial Registration Statement referred to in
Section 2(a)(ii), the date that is 90 days after the delivery to the Issuer of a
Shelf Notice thereunder; and (iii) with respect to the Initial Registration
Statement referred to in Section 2(a)(iii), the date that is 180 days after the
Closing Date.
Effectiveness Period: With respect to any Initial Registration
Statement referred to in any subsection of Section 2(a), the period commencing
on the applicable Effectiveness Actual Date during which the Issuer has agreed
to use its reasonable best efforts to keep the applicable Initial Registration
Statement continuously effective under the Securities Act and ending as provided
in the applicable subsection of Section 2(a).
Event Date: See Section 3(b).
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
Holder: Any registered holder of Registrable Units.
Indemnified Person: See Section 6(c).
Indemnifying Person: See Section 6(c).
Initial Shelf Registration: Any Registration Statement filed pursuant
to Section 2(a).
Inspectors: See Section 4(o).
Issuer: Ferrellgas Partners, L.P., a Delaware limited partnership.
Market Value: The average of the daily Closing Prices for Common Units
during the five consecutive trading days prior to and including the date of
determination, as adjusted in good faith by the general partner of the Issuer to
appropriately reflect any splits or combinations of the Common Units subsequent
to the Closing Date.
Material Event: See Article II of the Partnership Agreement.
NASD: National Association of Securities Dealers, Inc.
Outstanding: With respect to the Units, all Units that are issued by
the Partnership and reflected as outstanding on the Partnership's books and
records as of the date of determination.
Participant: See Section 6(a).
Partnership Agreement: The Amended and Restated Agreement of Limited
Partnership of the Issuer, as same may be amended from time to time pursuant to
the terms thereof.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization or government (including any agency or political subdivision
thereof).
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Units covered by such Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph to this
Agreement.
Records: See Section 4(o).
Registrable Units: (i) any Units issued or issuable pursuant to the
Purchase Agreement, this Agreement or the provisions of the Partnership
Agreement relating to the issuance of Senior Units (including any Additional
Senior Units) or the issuance of Common Units upon conversion of Senior Units,
(ii) in the case of the Senior Units if the Unitholders have approved the Senior
Unit Conversion Option in accordance with the Partnership Agreement, all Common
Units into which such Senior Units are convertible and (iii) any Units issued or
issuable with respect to the Units referred to in clause (i) or (ii) above by
way of a Unit distribution or Unit split or in connection with a combination of
Units, recapitalization, merger, consolidation or other reorganization. As to
any particular Registrable Units, such Units shall cease to be Registrable Units
upon the earliest to occur of (i) a Registration Statement covering such Units
has been declared effective by the Commission and such Units have been disposed
of in accordance with such effective Registration Statement, (ii) such Units are
eligible for sale to the public pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act without being subject to the volume and
manner of sale restrictions contained therein and the Effectiveness Period
applicable to the Registration Statement has expired, (iii) such Units shall
have been otherwise transferred by such Holder and new certificates for such
securities not bearing a legend restricting further transfer shall have been
delivered by the Issuer or its transfer agent and subsequent disposition of such
securities shall not require registration or qualification under the Securities
Act or any similar state law then in force, or (iv) such Units cease to be
Outstanding for purposes of the Partnership Agreement. Common Units or Senior
Units that are Registrable Units are sometimes referred to herein as Registrable
Common Units or Registrable Senior Units, respectively.
Registration Statement: Any registration statement of the Issuer that
covers any of the Registrable Units pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Representations Agreement: See the second introductory paragraph of this
Agreement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the Commission.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the Commission.
Rule 415: Rule 415 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
Senior Unit Conversion Option: See Article II of the Partnership Agreement.
Senior Unit Distribution: See Article II of the Partnership Agreement.
Senior Units: See the second introductory paragraph of this Agreement.
Shelf Notice: See Section 2(a).
Shelf Registration: See Section 2(c).
Subsequent Shelf Registration: See Section 2(c).
Suspension Period: See Section 2(d).
Underwritten offering: An offering in which securities of the Issuer
are sold to an underwriter or underwriters for reoffering to the public.
Unitholders: Holders of limited partnership interests in the Issuer.
Units: The Senior Units and the Common Units of the Issuer.
1. SECTION Shelf Registration .
(a) Filing and Effectiveness of Shelf Registration.
(i) Upon the occurrence of a Material Event, the Issuer shall file with the
Commission an Initial Shelf Registration for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable Units
within 30 days of the occurrence of the Material Event and shall use its
reasonable best efforts to cause the Initial Shelf Registration to be declared
effective under the Securities Act within 90 days following the occurrence of
the Material Event. The Issuer shall use its reasonable best efforts to keep the
Initial Shelf Registration continuously effective under the Securities Act for
(A) an Effectiveness Period until the date which is two years from the
Effectiveness Actual Date (or, if Rule 144(k) under the Securities Act is
amended to permit unlimited resales of the Registrable Units by non-affiliates
within a lesser period, such lesser period), subject to extension (I) pursuant
to the last paragraph of Section 4 hereof or (II) for so long as at least (x)
$10 million aggregate liquidation preference of the Senior Units or (y) $10
million aggregate Market Value of Common Units, as applicable, covered by the
Initial Registration Statement have not been sold in transactions described in
clauses (i) or (iii) of the second sentence of the definition of Registrable
Units, or (B) such shorter Effectiveness Period ending when all Registrable
Units covered by the Initial Shelf Registration either have been sold in
transactions described in clauses (i) or (iii) of the second sentence of the
definition of Registrable Units or shall cease to be Outstanding, other than, in
either case, less than (x) $10 million aggregate liquidation preference of
Senior Units or (y) $10 million aggregate Market Value of Common Units, as
applicable.
(ii) At any time commencing on or after November 3, 2001, unless Section
2(a)(i) is applicable, the Holders of at least 25% in aggregate number of
outstanding Registrable Units may make a written request (a "Shelf Notice") to
the Issuer for registration of Registrable Units to be made pursuant to an
Initial Registration Statement. The Issuer shall give written notice of such
registration request within 5 Business Days after the receipt thereof to all
other Holders. Within 7 Business Days after receipt of such notice by any
Holder, such Holder may request in writing that such Holder's Registrable Units
be included in such registration and the Issuer shall include in the Initial
Shelf Registration the Registrable Units of any such selling Holder requested to
be so included. A Holder so notified who does not timely make such request may
not later deliver a Shelf Notice to the Company requiring the Company to file
another Shelf Registration under this Section 2 with respect to such Holder's
Registrable Units, but may later request in writing (but no more than twice
during any consecutive 12 months) that such Holder's Registrable Units be
included in the Initial Shelf Registration and the Issuer shall, as soon as
possible, include in such Initial Shelf Registration the Registrable Units of
any such selling Holder requested to be so included (and, if the Initial
Registration Statement has already been filed, shall file with the Commission a
pre-effective or post-effective amendment, as applicable, to effect such
inclusion).
The Issuer shall file with the Commission an Initial
Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Units within 30
days of the delivery of the Shelf Notice and shall use its reasonable
best efforts to cause the Initial Shelf Registration to be declared
effective under the Securities Act within 90 days after the delivery to
the Issuer of a Shelf Notice. The Issuer shall use its reasonable best
efforts to keep the Initial Shelf Registration continuously effective
under the Securities Act for (A) an Effectiveness Period until the date
which is two years from the Effectiveness Actual Date (or, if Rule
144(k) under the Securities Act is amended to permit unlimited resales
of the Registrable Units by non-affiliates within a lesser period such
lesser period), subject to extension (I) pursuant to the last paragraph
of Section 4 hereof or (II) for so long as at least (x) $10 million
aggregate liquidation preference of Senior Units or (y) $10 million
aggregate Market Value of Common Units, as applicable, covered by the
Initial Registration Statement have not been sold in transactions
described in clauses (i) or (iii) of the second sentence of the
definition of Registrable Units, or (B) such shorter Effectiveness
Period ending when all Registrable Common Units covered by the Initial
Shelf Registration either have been sold in transactions described in
clauses (i) or (iii) of the second sentence of the definition of
Registrable Units or shall cease to be Outstanding, other than, in
either case, less than (x) $10 million aggregate liquidation preference
of Senior Units or (y) $10 million aggregate Market Value of Common
Units, as applicable.
(i) In the event that, within 120 days of the closing under the Purchase
Agreement, the Unitholders have not approved the Senior Unit Conversion Option
in accordance with the Partnership Agreement and no Material Event has occurred,
the Issuer shall file with the Commission an Initial Shelf Registration for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Registrable Senior Units and shall use its reasonable best efforts to cause
the Initial Shelf Registration to be declared effective under the Securities Act
within 180 days after the Closing Date. The Issuer shall use its reasonable best
efforts to keep the Initial Shelf Registration continuously effective under the
Securities Act for an Effectiveness Period until the date when all Registrable
Senior Units covered by the Initial Shelf Registration have been sold in
transactions described in clauses (i) or (iii) of the second sentence of the
definition of Registrable Units, or shall cease to be outstanding.
(b) Form of Shelf Registration. The Initial Shelf Registration shall be on Form
S-3 or another appropriate form permitting registration of such Registrable
Units for resale by Holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings). The Issuer
shall not permit any securities other than the Registrable Units to be included
in any Shelf Registration.
(c) Subsequent Shelf Registrations. If the Initial Shelf Registration or any
Subsequent Shelf Registration ceases to be effective for any reason at any time
during the Effectiveness Period (other than because of the expiration of the
Effectiveness Period in accordance with Section 2(a)), the Issuer shall use its
reasonable best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within 30 days of such
cessation of effectiveness amend the Shelf Registration in a manner to obtain
the withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the Registrable Units (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Issuer shall use its reasonable best efforts to cause
the Subsequent Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such Subsequent Shelf Registration
continuously effective until the end of the applicable Effectiveness Period. As
used herein the term "Shelf Registration" means the Initial Shelf Registration
and any Subsequent Shelf Registration.
(d) Suspension Period. Notwithstanding anything herein to the contrary, the
Issuer shall not be obligated to keep any Shelf Registration effective or to
permit the use of any Prospectus forming a part of any Shelf Registration if
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(i) the Issuer determines, in its reasonable judgment upon advice of counsel,
that the continued effectiveness and use of the Shelf Registration would
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(e) require the disclosure of material information which the Issuer has a bona
fide business reason for preserving as confidential, or interfere with any
acquisition, corporate reorganization or other material transaction involving
the Issuer or any of its subsidiaries; provided, however, that the failure to
keep the Shelf Registration effective and usable for offers and sales of
Registrable Units for such reasons shall last no longer than 30 days per
occurrence or 60 days in the aggregate for any consecutive twelve-month period,
and the Issuer promptly thereafter complies with the requirements of Section
4(k) hereof, if applicable (any such period during which the Issuer is excused
from keeping the Shelf Registration effective and usable for offers and sales of
Registrable Units is referred to herein as a "Suspension Period," and a
Suspension Period shall commence on and include the date that the Issuer gives
notice to the Holders that the Shelf Registration is no longer effective or the
Prospectus included therein is no longer usable for offers and sales of
Registrable Units as a result of the foregoing provisions and shall end on the
earlier to occur of the date on which each selling Holder of Registrable Units
covered by the Shelf Registration either receives the copies of the supplemental
or amended prospectus contemplated by Section 4(k) hereof or is advised in
writing by the Issuer that use of the prospectus may be resumed).
(f) Supplements and Amendments. The Issuer shall promptly supplement and amend
any Shelf Registration if required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration, if
required by the Securities Act, or if reasonably requested by the Holders of a
majority in aggregate number of the Registrable Units covered by such Shelf
Registration or by any underwriter of such Registrable Units, in each case, with
the Issuer's consent, which consent shall not be unreasonably withheld or
delayed.
(a)
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2. SECTION Additional Payments .
(a) The Issuer and Williams agree that the Holders of Registrable Units will
suffer damages if the Issuer fails to fulfill its obligations under Section 2
hereof and that it would not be feasible to ascertain the extent of such damages
with precision. Accordingly, the Issuer agrees to pay, as liquidated damages,
payments on the Registrable Units in addition to any amounts otherwise payable
thereon ("Additional Payments") under the circumstances and to the extent set
forth below (each of which shall be given independent effect):
(i) if an Initial Shelf Registration is not declared effective on or prior
to the applicable Effectiveness Target Date, commencing on the day
immediately following such Effectiveness Target Date, Additional
Payments shall accrue on the Registrable Units at the Additional
Payment Rate for each day that such Initial Shelf Registration is not
declared effective; and
(ii) if a Shelf Registration has been declared effective and such Shelf
Registration ceases to be effective at any time during the applicable
Effectiveness Period , commencing on the day immediately following the
date such Shelf Registration ceases to be effective (other than
pursuant to Section 2(d)), Additional Payments shall accrue on the
Registrable Units at the Additional Payment Rate for each day that such
Shelf Registration ceases to be effective;
provided, however, that (1) upon the effectiveness of an Initial Shelf
Registration (in case of (i) above) or (2) upon the reinstatement of
effectiveness of a Shelf Registration which has ceased to remain effective (in
the case of (ii) above), Additional Payments on any Registrable Units then
accruing Additional Payments as a result of such clause shall cease to accrue.
(a) The Issuer shall notify the Holders within one Business Day after each and
every date on which an event occurs in respect of which Additional Payments are
required to be paid (an "Event Date"). Any amounts of Additional Payments due
pursuant to (a)(i) or (a)(ii) of this Section 3 will be payable (i) in the case
of the Common Units, in cash, or (ii) in the case of the Senior Units, (x) on or
prior to the earlier to occur of February 1, 2002 or the first occurrence of a
Material Event, in Additional Senior Units and (y) thereafter, in cash. Any such
amounts will be payable monthly on the first Business Day of each month to the
holder of record on such day commencing with the first such day after any Event
Date. Additional Payments shall accrue at a rate (the "Additional Payment Rate")
equal to (i) in the case of Senior Units, $0.25 per Senior Unit per quarter or
(ii) in the case of Common Units that were issued upon exercise of the Senior
Unit Conversion Option, an amount per Common Unit per quarter equal to $0.25
divided by the number of Common Units into which each Senior Unit was converted.
The amount of Additional Payments will be determined by multiplying the
applicable Additional Payment Rate by the number of the Units subject thereto,
multiplied by a fraction, the numerator of which is the number of days such
Additional Payment Rate was applicable during such period (determined on the
basis of a 90-day quarter comprised of three 30-day months), and the denominator
of which is 90.
(b) The Issuer and the Holders hereby agree that any Additional Payments paid in
cash shall be treated, for federal income tax purposes, as a transaction
occurring between the Issuer and one who is not a partner in the Issuer in
accordance with Section 707(a)(1) of the Internal Revenue Code of 1986, as
amended, and shall not be treated as a distribution under the terms of the
Partnership Agreement.
4. SECTION Registration Procedures .
Whenever the Holders have requested that any Registrable Units be
registered pursuant to Section 2 hereof, the Issuer will use its reasonable best
efforts to effect the registration of such Registrable Units in accordance with
the intended method of disposition thereof as quickly as practicable, and in
connection with any Registration Statements, the Issuer will as expeditiously as
possible:
(a) Prepare and file with the Commission a Registration Statement and use its
reasonable best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided that, before filing
any Registration Statement or any amendments or supplements thereto, the Issuer
shall, if requested, furnish to and afford the Holders of the Registrable Units
to be registered pursuant to such Registration Statement and their counsel and
the managing underwriters, if any, a reasonable opportunity to review copies of
all such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each case
at least five Business Days prior to such filing). The Issuer shall not file any
such Registration Statement or any amendments or supplements thereto if the
Holders of a majority in aggregate number of the Registrable Units covered by
such Registration Statement or their counsel shall reasonably object.
(b) Prepare and file with the Commission such amendments and post-effective
amendments to each Registration Statement, as may be necessary to keep such
Registration Statement continuously effective for the applicable Effectiveness
Period provided herein; cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act and the
Exchange Act applicable to it with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such Prospectus as so
supplemented.
(a)
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(i) Notify the selling Holders of Registrable Units, their counsel and the
managing underwriters, if any, promptly (but in any event within two Business
Days), and confirm such notice in writing, when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective (including in such notice a written statement that any Holder may,
upon request, obtain, without charge, one conformed copy of such Registration
Statement or post-effective amendment including financial statements and
schedules, documents incorporated or deemed to be incorporated by reference and
exhibits), of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the initiation of any
proceedings for that purpose, if at any time when a prospectus is required by
the Securities Act to be delivered in connection with sales of the Registrable
Units the representations and warranties of the Issuer contained in any
agreement (including any underwriting agreement contemplated by Section 4(n)
hereof) cease to be true and correct in any material respect, of the receipt by
the Issuer of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement or any
of the Registrable Units, or the initiation or threatening of any proceeding for
such purpose, of the happening of any event, the existence of any condition or
any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in, or amendments or supplements to,
such Registration Statement, Prospectus or docum
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(ii) ents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and of the
Issuer's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
(c) Use its reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Units, for sale in
any jurisdiction, and, if any such order is issued, to use its reasonable best
efforts to obtain the withdrawal of any such order at the earliest possible
date.
(d) If requested by the managing underwriters, if any, or the Holders of a
majority in aggregate number of the Registrable Units being sold in connection
with an underwritten offering, (i) as promptly as practicable incorporate in a
prospectus supplement or post-effective amendment such information or revisions
to information therein relating to such underwriters or selling Holders as the
managing underwriters, if any, or such Holders or their counsel reasonably
request to be included or made therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as practicable
after the Issuer has received notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment, and (iii) supplement or
make amendments to such Registration Statement.
(e) Furnish to each selling Holder of Registrable Units who so requests and to
counsel and each managing underwriter, if any, who so requests without charge,
one conformed copy of the Registration Statement or Registration Statements and
each post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(f) Deliver to each selling Holder of Registrable Units, their respective
counsel, and the underwriters, if any, without charge, as many copies of the
Prospectus or Prospectuses (including each form of preliminary prospectus) and
each amendment or supplement thereto and any documents incorporated by reference
therein as such Persons may reasonably request; and, subject to the last
paragraph of this Section 4, the Issuer hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders of Registrable Units, and the underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of the Registrable
Units covered by such Prospectus and any amendment or supplement thereto.
(g) Prior to any public offering of Registrable Units, use its reasonable best
efforts to register or qualify, and cooperate with the selling Holders of
Registrable Units, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Units, for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, or the managing underwriter or underwriters, if
any, reasonably request in writing; keep each such registration or qualification
(or exemption therefrom) effective during the period such Registration Statement
is required to be kept effective and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Units covered by the applicable Registration
Statement; provided that the Issuer shall not be required to (A) qualify
generally to do business in any jurisdiction where it is not then so qualified,
(B) take any action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or (C) subject itself to
taxation in any such jurisdiction where it is not then so subject.
(h) Facilitate the timely preparation and delivery of certificates representing
Registrable Units to be sold, which certificates shall not bear any restrictive
legends and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Units to be in such denominations and
registered in such names as the managing underwriter or underwriters, if any, or
Holders may reasonably request.
(i) Use its reasonable best efforts to cause the Registrable Units covered by
the Registration Statement to be registered with or approved by such
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof or the underwriters, if any, to consummate the disposition of
such Registrable Units, in which case the Issuer will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals.
(j) Upon the occurrence of any event contemplated by paragraph 4(c)(v) or
4(c)(vi) hereof, as promptly as practicable prepare and (subject to Section 4(a)
hereof) file with the Commission, at the Issuer's sole expense, a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Units being sold thereunder, any
such Prospectus will 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 light of the circumstances under which they were made,
not misleading.
(k) Use its reasonable best efforts to cause the Registrable Senior Units
covered by a Registration Statement to be rated with the appropriate rating
agencies, if so requested by the managing underwriter or underwriters, if any.
(l) Prior to the effective date of the first Registration Statement relating to
the Registrable Units, (i) provide the transfer agent with printed certificates,
if not then already available, for the Registrable Units in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP number for
the Registrable Senior Units.
(a)
NYC:70964.12
(i) Enter into an underwriting agreement as is customary in underwritten
offerings of master limited partnership equity securities similar to the Senior
Units or the Common Units, as the case may be, and take all such other actions
as are reasonably requested by the managing underwriter or underwriters, if any,
in order to expedite or facilitate the registration or the disposition of such
Registrable Units (including preparation of and participation in a "road show"
in connection with such disposition) and, in such connection, make such
representations and warranties to the underwriters, with respect to the business
of the Issuer and its subsidiaries and the Registration Statement, Prospectus
and documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to underwriters in
underwritten offerings of master limited partnership equity securities similar
to the Senior Units or the Common Units, as the case may be, and confirm the
same in writing if and when requested; if requested by the managing underwriter
or underwriters, obtain the opinion of counsel to the Issuer and updates thereof
in form and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings of master limited
partnership equity securities similar to the Senior Units or the Common Units,
as the case may be, and such other matters as may be reasonably requested by
underwriters; if requested by the managing underwriter or underwriters, if any,
obtain "cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriter or underwriters from the
independent certified public accountants of the Issuer (and, if necessary, any
other independent certified public accountants of any subsidiary of the Issuer
or of any business acqui
NYC:70964.12
(ii) red by the Issuer for which financial statements and financial data are, or
are required to be, included in the Registration Statement), addressed to each
of the underwriters, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters in connection with
underwritten offerings of master limited partnership equity securities similar
to the Senior Units or the Common Units, as the case may be, and such other
matters as reasonably requested by the managing underwriter or underwriters; and
if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set forth
in Section 6 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate number of Registrable Units covered by such
Registration Statement and the managing underwriter or underwriters or agents)
with respect to all parties to be indemnified pursuant to said Section. The
above shall be done at each closing under such underwriting agreement, or as and
to the extent required thereunder.
(m) Make available for inspection by representatives appointed by the selling
Holders of a majority of such Registrable Units being sold, and any underwriter
participating in any such disposition of Registrable Units, if any
(collectively, the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all material financial and other records, pertinent
corporate documents and properties of the Issuer and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Issuer and its subsidiaries to supply all
material information reasonably requested by any such Inspector in connection
with such Registration Statement. Each selling Holder of such Registrable Units
will be required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Issuer unless and
until such is made generally available to the public. Each Inspector and each
selling Holder of such Registrable Units will be required to further agree that
it will, upon learning that disclosure of such Records is sought in a court of
competent jurisdiction of the previous sentence or otherwise, give notice to the
Issuer and allow the Issuer to undertake appropriate action to obtain a
protective order or otherwise prevent disclosure of the Records deemed
confidential at its expense.
(n) Provide a transfer agent for the Registrable Units, to the extent not
already provided.
(o) Comply with all applicable rules and regulations of the Commission and make
generally available to its securityholders earnings statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Units are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter of the
Issuer after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(p) Cooperate with each seller of Registrable Units covered by any Registration
Statement and each underwriter, if any, participating in the disposition of such
Registrable Units and their respective counsel in connection with any filings
required to be made with the NASD.
(q) Use its reasonable best efforts to take all other steps reasonably necessary
to effect the registration of the Registrable Units covered by a Registration
Statement contemplated hereby.
The Issuer may, as a condition to such Holder's participation in any
Registration Statements, require each Holder of Registrable Units to (i) furnish
to the Issuer such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Units as the Issuer may from
time to time reasonably request in writing, (ii) agree in writing to be bound by
this Agreement and (iii) enter into a standard form underwriting agreement. The
Issuer may exclude from such registration the Registrable Units of any seller
who fails to furnish such information described in clause (i) of the immediately
preceding sentence or enter into the agreements contemplated by clauses (ii) and
(iii) of the immediately preceding sentence within a reasonable time after being
requested to do so.
Each Holder of Registrable Units agrees by acquisition of such
Registrable Units that, upon receipt of any notice from the Issuer of the
happening of any event of the kind described in Section 4(c)(ii), 4(c)(iv),
4(c)(v), or 4(c)(vi), such Holder will forthwith discontinue disposition of such
Registrable Units covered by such Registration Statement or Prospectus and, in
each case, dissemination of such Prospectus until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 4(k),
or until it is advised in writing (the "Advice") by the Issuer that the use of
the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Issuer shall give any such
notice, the period during which such Registration Statement is required to
remain effective shall be extended by the number of days during such periods
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Units covered by such Registration
Statement, shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 4(k) or (y) the Advice.
3. SECTION Registration Expenses .
NYC:70964.12
(i) All fees and expenses incident to the performance of or compliance with this
Agreement by the Issuer shall be borne by the Issuer whether or not a Shelf
Registration is filed or becomes effective, including, without limitation, all
registration and filing fees (including, without limitation, fees with respect
to filings required to be made with the NASD in connection with an underwritten
offering and fees and expenses of compliance with state securities or Blue Sky
laws (including, without limitation, reasonable fees and disbursements of
counsel in connection with Blue Sky qualifications of the Registrable Units and
determination of the eligibility of the Registrable Units for investment under
the laws of such jurisdictions where the holders of Registrable Units are
located)), printing expenses, including, without limitation, expenses of
printing certificates for Registrable Units in a form eligible for deposit with
The Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate number of the Registrable Units
included in any Registration Statement, fees and disbursements of counsel for
the Issuer and reasonable fees and disbursements of up to one special counsel
chosen by holders of the majority of the Registrable Units (other than any local
counsel) for the sellers of Registrable Units, fees and disbursements of all
independent certified public accountants referred to in Section 4(n)(iii)
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), rating agency
fees, fees and expenses of all other Persons retained by the Issuer, internal
expenses of the Issuer (including, without limitation, all salaries and expenses
of officers and employees of the Issuer performing legal or accounting duties),
the expense of any
NYC:70964.12
(ii) annual or special audit, the fees and expenses incurred in connection with
the listing of the securities to be registered on any securities exchange, the
fees and disbursements of underwriters, if any, customarily paid by issuers or
sellers of securities (but not including any underwriting discounts or
commissions or transfer taxes, if any, attributable to the sale of the
Registrable Units which discounts, commissions or taxes shall be paid by Holders
of such Registrable Units) and the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, securities sales agreements and any other documents necessary in
order to comply with this Agreement.
4. SECTION Indemnification .
(a) The Issuer agrees to indemnify and hold harmless each Holder of Registrable
Units, the officers, directors, employees and agents of each such Person, and
each Person, if any, who controls any such Person within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a
"Participant"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable legal fees and other
reasonable expenses actually incurred in connection with any suit, action or
proceeding or any claim asserted) caused by, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (as amended or supplemented if the Issuer
shall have furnished any amendments or supplements thereto) or caused by,
arising out of or based upon any omission or alleged omission to state therein 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, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Participant furnished to the Issuer in writing by or on behalf of such
Participant expressly for use therein.
(b) Each Participant will be required to agree, severally and not jointly, to
indemnify and hold harmless the Issuer, the general partner of the Issuer and
its directors and officers and each Person who controls the Issuer and its
general partner within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Issuer to each Participant, but only with reference to information
relating to such Participant furnished to the Issuer in writing by such
Participant expressly for use in any Registration Statement or Prospectus, any
amendment or supplement thereto, or any preliminary prospectus. The liability of
any Participant under this paragraph shall in no event exceed the proceeds
received by such Participant from sales of Registrable Units giving rise to such
obligations.
(c) If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any Person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person may, at its option, participate
in and assume the defense thereof and retain counsel reasonably satisfactory to
the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise except to the extent that the Indemnifying
Person is materially prejudiced by such failure to notify. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed in writing to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person, or affiliates of such Persons,
and there may be one or more defenses available to such Indemnified Person or
Persons that are different from or additional to those available to the
Indemnifying Persons, in which case, if such Indemnified Person or Persons
notifies the Indemnifying Persons in writing that it elects to employ separate
counsel of its choice at the expense of the Indemnifying Persons, the
Indemnifying Persons shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the Indemnifying Persons. The
Indemnifying Person shall not, in any event, unless there exists a conflict
among Indemnified Persons, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Participants and such control Persons
of Participants shall be designated in writing by Participants who sold a
majority in interest of Registrable Units sold by all such Participants and any
such separate firm for the Issuer, its directors, officers and such control
Persons of the Issuer shall be designated in writing by the Issuer. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there is a final nonappealable judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for reasonable fees and
expenses actually incurred by counsel as contemplated by the third sentence of
this paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its consent if (i) such settlement
is entered into more than 30 days after receipt by such Indemnifying Person of
the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional release
of such Indemnified Person, in form and substance satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of an Indemnified Person.
(d) If the indemnification provided for in the first and second paragraphs of
this Section 6 is unavailable to, or insufficient to hold harmless, an
Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Person or Persons on the one hand and the Indemnified
Person or Persons on the other in connection with the statements or omissions
(or alleged statements or omissions) that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuer on the one hand or
by the Participants or such other Indemnified Person, as the case may be, on the
other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation (even if the
Participants were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any reasonable legal or
other expenses actually incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, in no event shall a Participant be required to
contribute any amount in excess of the amount by which proceeds received by such
Participant from sales of Registrable Units exceeds the amount of any damages
that such Participant has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this Section 6 will
be in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
5. SECTION Rule 144A .
The Issuer covenants that it will file the reports required to be filed
by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder in a timely manner. The Issuer
further covenants, for so long as any Registrable Units remain outstanding, to
make available to any Holder or beneficial owner of Registrable Units in
connection with any sale thereof and any prospective purchaser of such
Registrable Units from such Holder or beneficial owner, the information required
by Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Registrable Units pursuant to Rule 144A.
3. SECTION Underwritten Offerings .
If the Holders of at least 25% in aggregate number of outstanding
Registrable Units so elect, any one or more offerings of such Registrable Units
pursuant to any Shelf Registration shall be in the form of an underwritten
offering. If any of the Registrable Units covered by any Shelf Registration are
to be sold in an underwritten offering, the Issuer will select a nationally
recognized investment banker or investment bankers and manager or managers that
will manage the offering, that shall be reasonably acceptable to the Holders of
a majority in aggregate number of such Registrable Units included in such
offering.
No Holder of Registrable Units may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Units on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
3. SECTION Miscellaneous .
(a) Remedies. In the event of a breach by the Issuer of any of its obligations
under this Agreement, each Holder of Registrable Units, in addition to being
entitled to exercise all rights provided herein, or in the Purchase Agreement,
or granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Issuer agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in respect of
such breach, it shall waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuer has not entered, as of the date
hereof, and the Issuer shall not enter, after the date of this Agreement, into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Units in this Agreement or
otherwise conflicts with the provisions hereof.
(c) Adjustments Affecting Registrable Units. The Issuer shall not, directly or
indirectly, take any action with respect to the Registrable Units as a class
that would adversely affect the ability of the Holders of Registrable Units to
include such Registrable Units in a registration undertaken pursuant to this
Agreement.
(d) Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, otherwise than with the prior written
consent of the Issuer and the Holders of not less than a majority in aggregate
number of the then outstanding Registrable Units; provided, however, that
Section 6 and this Section 9(d) may not be amended, modified or supplemented
without the prior written consent of the Issuer and each Holder (including any
person who was a Holder of Registrable Units disposed of pursuant to any
Registration Statement). Notwithstanding the consent requirements of Holders set
forth in the previous sentence, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Units whose securities are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect,
impair, limit or compromise the rights of other Holders of Registrable Units may
be given by Holders of at least a majority in aggregate number of the
Registrable Units being tendered or being sold by such Holders pursuant to such
Registration Statement and, provided, further, that no such modification,
amendment or waiver under this sentence may treat any Holder more adversely than
any other Holder without such Holder's written consent.
(e) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, next-day air courier or telecopier:
(1) if to a Holder of Registrable Units, at the most current
address of such Holder, set forth on the records of the
registrar under the Purchase Agreement, with a copy in like
manner to Williams (as long as it holds any Registrable Units)
as follows:
Williams National Gas Liquids, Inc.
One Williams Center, Suite 3000
Tulsa, Oklahoma 74172
Attention: Don Wellendorf
Telecopy: (918) 573-3864
and to:
The Williams Companies, Inc.
One Williams Center, Suite 4100
Tulsa, Oklahoma 74172
Attention: Lonny Townsend
Telecopy: (800) 479-6690
with a copy to:
Andrews & Kurth L.L.P.
805 Third Avenue
New York, New York 10022
Attention: Michael Swidler
Telecopy: (212) 850-2929
(1) if to the Issuer, as follows:
Ferrellgas Partners, L.P.
Ferrellgas, Inc.
One Liberty Plaza
Liberty, Missouri 64068
Attention: James M. Hake
Telecopy: (816) 792-7985
with a copy to:
Bracewell & Patterson LLP
South Tower Pennzoil Place
711 Louisiana Street, Suite 2900
Houston, Texas 77002
Attention: David L. Ronn
Telecopy: (713) 222-3208
Notice given by personal delivery, courier service or mail shall be effective
upon actual receipt. Notice given by telecopier shall be confirmed by
appropriate answer back and shall be effective upon actual receipt if received
during the recipient's normal business hours, or at the beginning of the
recipient's next business day after receipt if not received during the
recipient's normal business hours. All notices by telecopier shall be confirmed
promptly after transmission in writing by certified mail or personal delivery.
Any party may change any address to which Notice is to be given to it by giving
Notice as provided above of such change of address.
(a) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto and the
Holders; provided, however, that this Agreement shall not inure to the benefit
of or be binding upon a successor or assign of a Holder unless and to the extent
such successor or assign holds Registrable Units.
(b) Counterparts. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(c) Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(e) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(f) Units Held by the Issuer or Its Affiliates. Whenever the consent or approval
of Holders of a specified percentage of Registrable Units is required hereunder,
Registrable Units held by the Issuer or its affiliates (as such term is defined
in Rule 405 under the Securities Act) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(g) Third Party Beneficiaries. Holders of Registrable Units are intended third
party beneficiaries of this Agreement and this Agreement may be enforced by such
Persons
(h) Entire Agreement. This Agreement, together with the Purchase Agreement, is
intended by the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understandings, correspondence,
conversations and memoranda among Williams on the one hand and the Issuer on the
other, or between or among any agents, representatives, parents, subsidiaries,
affiliates, predecessors in interest or successors in interest with respect to
the subject matter hereof and thereof are merged herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
FERRELLGAS PARTNERS, L.P.
By: FERRELLGAS, INC.,
its general partner
By:
Name:
Title:
WILLIAMS NATURAL GAS LIQUIDS, INC.
By:
Name:
Title: