EXHIBIT 99.5
THE SECURITIES SUBJECT TO THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED BY THE PURCHASER
THEREOF, UNLESS SOLD OR OTHERWISE TRANSFERRED IN COMPLIANCE WITH THIS UNIT
PURCHASE AGREEMENT, THE LIMITED PARTNERSHIP AGREEMENT OF FERRELLGAS PARTNERS,
L.P. AS IN EFFECT AT THE TIME OF SALE OR TRANSFER AND (I) SUCH SECURITIES HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES
LAWS OR (II) AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND A LEGAL
OPINION STATING THAT SUCH EXEMPTION IS AVAILABLE HAS BEEN SUBMITTED TO
FERRELLGAS PARTNERS, L.P. BY COUNSEL TO THE HOLDER OF SUCH SECURITIES, IN FORM
AND SUBSTANCE ACCEPTABLE TO FERRELLGAS PARTNERS, L.P. IN ITS SOLE DISCRETION.
UNIT PURCHASE AGREEMENT
This Unit Purchase Agreement (this "Agreement") is entered into as of
February 8, 2004, between Ferrellgas Partners, L.P., a Delaware limited
partnership (the "Partnership"), and the stockholder of Blue Rhino Corporation,
a Delaware corporation (the "Company") listed on Schedule I hereto
("Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to that particular Agreement and Plan of Merger made
and entered into as of the date hereof (the "Merger Agreement"), by and among
FCI Trading Corp., Diesel Acquisition LLC ("Merger Sub"), Xxxxxxx Companies,
Inc. and the Company, it is contemplated that the Merger Sub will merge into
the Company, with the Company being the surviving entity (the "Merger"); and
WHEREAS, upon, and subject to, the closing of the Merger and
particular other events related thereto and as further described in the Merger
Agreement (the "Effective Date"), Purchaser desires to purchase, and the
Partnership desires to sell, that aggregate dollar amount of common units of
the Partnership, representing limited partner interests in the Partnership
("Common Units"), set forth across from the name of Purchaser on Schedule I
hereto.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, mutual covenants and agreements herein contained
and intending to be legally bound hereby, the Partnership and Purchaser hereby
agree as follows:
1. Purchase of Units.
(a) On the Effective Date and subject to the terms and conditions
set forth herein, the Partnership shall, based upon the purchase price per
Common Unit as determined in accordance with Section 2 below, sell to
Purchaser, and Purchaser shall purchase from the Partnership, that aggregate
dollar amount of Common Units set forth across from Purchaser's name on
Schedule I hereto (the "Purchase Price").
(b) Prior to the Stockholders' Meeting (as defined in the Merger
Agreement), Purchaser shall deliver to the Paying Agent (as defined in the
Merger Agreement), a letter of transmittal and letter of direction, each in
form and substance satisfactory to the Partnership in its sole discretion. Such
letters shall direct the Paying Agent, upon its receipt of the Merger
Consideration (as defined in the Merger Agreement) to pay to the Partnership
the applicable Purchase Price out of escrow, as detailed in the Merger
Agreement, and to pay to the applicable Purchaser any remaining funds to which
such Purchaser is entitled pursuant to the terms of the Merger Agreement.
(c) Upon the Partnership's receipt of the Purchase Price from the
Paying Agent, the Partnership shall cause the transfer agent for the Common
Units to deliver to Purchaser a certificate evidencing and representing that
number of Common Units purchased from the Partnership by Purchaser. No
fractional Common Units shall be issued to Purchaser hereunder, but the number
of Common Units to be issued pursuant to this Agreement shall be rounded up to
the nearest whole number, in lieu of issuing the fraction of a Common Unit
otherwise called for upon payment of the Purchase Price.
(d) Purchase Price. The purchase price for each Common Unit sold
hereunder shall be equal to the net proceeds (meaning the public offering price
of the Common Units less underwriting discounts and commissions but before
expenses of the Partnership) to the Partnership per Common Unit sold in the
Partnership's anticipated public underwritten offering of Common Units in
connection with the Merger.
(e) Termination. This Agreement shall terminate upon the
termination of the Merger Agreement.
2. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to the Partnership that the following representations
are true and correct as of the date hereof, and shall be true and correct at
and as of the Effective Date as though such representations and warranties were
made at such time:
(a) Purchaser is an "accredited investor" (as such term is
defined in Rule 501 of Regulation D under the Securities Act, the text of which
is set forth on Schedule II hereto).
(b) Purchaser is (i) a citizen of the United States and is at
least 21 years of age or (ii) a corporation or other legal entity formed and
duly organized under the laws of the United States or a state thereof, and that
the offer to purchase Common Units hereunder was made by the Partnership and
accepted by Purchaser within the United States;
(c) Purchaser has full power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and that such actions by
Xxxxxxxxx, if applicable, have been duly authorized by all requisite action,
corporate, partnership or otherwise;
(d) this Agreement and all other documents required of Purchaser
to complete the purchase of the Common Units hereunder have been duly executed
and delivered by Purchaser and constitute the legal, valid and binding
obligation of Purchaser enforceable in accordance with their respective terms;
(e) if Purchaser is an individual, Purchaser's payment to the
Partnership for the Common Units to be purchased hereunder is either separate
property or community property over which Purchaser has the right of control or
of which Purchaser has the sole right of management;
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(f) if Purchaser is a corporation, trust, partnership or other or
other legal entity, Purchaser is not an "investment company", as such term is
defined in ss.3(a) of the Investment Company Act of 1940, as amended, or an
entity which would be an "investment company" but for the exception provided
for in ss.3(c)(1) or ss.3(c)(7) of such act;
(g) the purchase of the Common Units by Purchaser is for
Purchaser's own account, is for investment purposes only, and is not being made
with a view to, nor for offer or sale in connection with, the distribution of
such Common Units and Purchaser is not participating, does not have a
participation in and does not contemplate any participation in, such a
distribution or the underwriting of any such distribution;
(h) Purchaser has no present intention of selling or otherwise
disposing of the Common Units purchased hereunder in violation of (i) this
Agreement, (ii) the Fourth Amended and Restated Partnership Agreement of the
Partnership, dated February 18, 2003, as such may be amended from time to time
subsequent to the date hereof (the "Partnership Agreement"), or (iii) the
Securities Act or any other applicable Federal or state securities laws;
(i) Purchaser is aware that neither the Securities and Exchange
Commission (the "SEC") nor other Federal or state securities commission or
governmental authority has approved or disapproved of the Common Units, made
any finding or determination as to the fairness of an investment in the
Partnership, nor made any recommendation or endorsement with respect thereto,
and any representation to the contrary is a criminal offense;
(j) Purchaser confirms that it understands and has fully
considered and reviewed for purposes of the purchase of Common Units hereunder
all documents filed with the SEC by the Partnership and its affiliates, all of
which are publicly available via XXXXX (all such documents are collectively
referred to herein as the "Public Filings");
(k) Purchaser is able to bear the economic risk of the purchase
of Common Units hereunder and is able to bear its investment in the Partnership
for an indefinite period of time;
(l) Purchaser understands that the Common Units purchased
hereunder have not been registered under the Securities Act or the securities
laws of any state and, therefore, cannot be sold, transferred or otherwise
disposed of (other than in accordance with the terms of the Registration Rights
Agreement dated as of the date hereof among the parties hereto) unless:
(i) such Common Units are subsequently registered under
the Securities Act and any applicable securities
laws of any state or exemptions from registration
thereunder are available; and
(ii) such sale, transfer or disposal is in compliance
with the terms of the Partnership Agreement and this
Agreement;
Purchaser further understands that only the Partnership can take
action to register the Common Units being sold hereunder and that the
Partnership is under no obligation, and has no present plans, to do
so;
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(m) Purchaser understands that (other than a sale in accordance
with the terms of the Registration Rights Agreement dated as of the date hereof
among the parties hereto) the Common Units purchased hereunder may be required
to be held for an indeterminate period of time and that the sale or other
transfer of such Common Units by Purchaser in reliance on Rule 144 under the
Securities Act, if available to Purchaser, may be made only in limited amounts
in accordance with the terms and conditions of Rule 144;
(n) In addition to the other provisions of this Agreement and the
Partnership Agreement, Xxxxxxxxx agrees that in no event will Purchaser make a
sale, transfer or other disposition of any of the Common Units purchased
hereunder (other than in accordance with the terms of the Registration Rights
Agreement dated as of the date hereof among the parties hereto) unless and
until:
(i) Purchaser has notified the Partnership of its
proposed disposition and has furnished the
Partnership with a statement of the circumstances
surrounding the proposed disposition; and
(ii) Purchaser has furnished the Partnership with an
opinion of counsel satisfactory to the Partnership
in its sole discretion to the effect (A) that such
disposition will not require registration or
qualification of such Common Units under federal or
state securities laws or (B) that appropriate action
necessary for compliance with such federal or state
securities laws has been taken;
provided, however, the Partnership may expressly waive the
requirements under clauses (i) and (ii) above.
(o) all information that Purchaser has supplied to the
Partnership or its respective representatives or agents, including the
information included in this Agreement, is true and complete as of the date
hereof, and unless otherwise made known to the Partnership or its
representatives in writing, true and complete as of the Effective Date, with
the same force and effect as if executed, made, or supplied, at the Effective
Date;
(p) Purchaser, or its principles, as the case may be,
acknowledges that they have such knowledge and experience in financial,
investing and business matters as to be capable of evaluating the risks and
merits of purchasing Common Units pursuant to this Agreement and protecting
their interests in connection with such purchase of the Common Units hereunder
and investment in the Partnership;
(q) Purchaser was not contacted by the Partnership or its
representatives for the purpose of purchasing the Common Units hereunder
through any advertisement, article, mass mailing, notice or any other
communication published in any newspaper, magazine, or similar media or
broadcast over television or radio, or any seminar or meeting whose attendees
were invited by any general advertising;
(r) Purchaser confirms that, in making the decision to purchase
Common Units hereunder, Xxxxxxxxx has relied solely upon independent
investigations made by Purchaser or representatives of Purchaser, including
their own professional tax and other advisers and that Purchaser and such
representatives have had access to and an opportunity to inspect all relevant
information relating to the Partnership (including the Public Filings)
sufficient to enable Purchaser to evaluate the merits and risks of their
purchase of Common Units hereunder;
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(s) Xxxxxxxxx has had the opportunity to ask questions of the
representatives of the Partnership, including representatives of its general
partner, and has received satisfactory answers respecting, and has obtained
such additional information as Purchaser has desired regarding the business,
financial condition and other affairs of the Partnership;
(t) the completion, execution and delivery by Purchaser of this
Agreement and all other documents required to complete the purchase of the
Common Units hereunder and the performance by Purchaser of its obligations
hereunder do not, and will not, violate any provision of law, any order of any
court or other agency of government, and do not and will not result in a
material breach of or constitute (with due notice or lapse of time or both) a
material default under any provision of any indenture, agreement or other
instrument to which Purchaser, or any of its properties or assets, is bound;
(u) Purchaser is not acquiring Common Units hereunder with a view
to realizing any benefits under the United States federal income tax laws with
respect to Purchaser's share of any losses or expenses of the Partnership, and
no representations have been made to Purchaser that any such benefits will be
available as result of Purchaser's acquisition, ownership or disposition of
such Common Units;
(v) Purchaser has not borrowed, and shall not borrow, as the case
may be, any portion of the funds necessary to purchase Common Units hereunder,
either directly or indirectly, from the Partnership, its general partner or any
affiliate of the foregoing;
(w) for United States tax purposes:
(i) Purchaser certifies that its name, taxpayer
identification or social security number and address
set forth on Schedule I are correct;
(ii) Purchaser certifies that it is not a non-resident
alien individual, foreign corporation, foreign
partnership, foreign trust or foreign estate (as
defined in the Internal Revenue Code of 1986, as
amended) and that it will notify the Partnership
within sixty (60) days of a change to foreign status
and its new country of residence; and
(iii) Purchaser agrees to execute properly and provide to
the Partnership in a timely manner any tax
documentation that may reasonably be required by the
Partnership in connection with its ownership on
Common Units.
3. Representations and Warranties of the Partnership. The Partnership
represents and warrants to Purchaser that:
(a) the Partnership is duly formed, validly existing and in good
standing under the laws of the State of Delaware and has full power and
authority to own and hold the properties and assets it now owns and holds and
to carry on its businesses as and where such properties are now owned or held
and such business is now conducted;
(b) the Partnership is duly licensed or qualified to do business
as a foreign entity, as applicable, and is in good standing in each
jurisdiction in which the character of the properties and assets now owned or
held by it or the nature of the business now conducted by it requires it to be
so licensed or qualified and where the failure so to qualify would not
reasonably be expected to have, individually or in the aggregate, an adverse
change in or effect on the ability of the Partnership to consummate any of the
transactions contemplated hereby;
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(c) this Agreement has been duly authorized, executed and
delivered by the Partnership and is the legal, valid and binding obligation of
the Partnership, enforceable against it in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and that the Board of Directors of the Partnership's general partner
on behalf of the Partnership has approved this Agreement and the transactions
contemplated hereby; no vote of any other equity holder of the Partnership is
required for approval of this Agreement;
(d) except for any required filings with the SEC or the State of
Delaware, the execution and delivery of this Agreement do not, and the
fulfillment and compliance with the terms and conditions hereof and the
consummation of the transactions contemplated hereby will not (i) conflict with
any of, or require the consent of any person or entity under, the terms,
conditions or provisions of the charter documents or bylaws or equivalent
governing instruments of the Partnership, (ii) violate any provision of, or
require any consent, authorization or approval under, any law or administrative
regulation or any judicial, administrative or arbitration order, award,
judgment, writ, injunction or decree applicable to the Partnership, (iii),
conflict with, result in a breach of, constitute a default under (whether with
notice or the lapse of time or both) or accelerate or permit the acceleration
of the performance required by, or require any consent, authorization or
approval under, any contract or agreement to which the Partnership is a party
or by which the Partnership is bound or to which any asset of the Partnership
is subject, or (iv) result in the creation of any lien, charge or encumbrance
on the assets or properties of the Partnership under any such contract or
agreement;
(e) the Partnership is not in default under, and no condition
exists that with notice or lapse of time or both would constitute a default
under, (i) any mortgage, loan agreement, indenture, evidence of indebtedness or
other instrument evidencing borrowed money to which it or any of its properties
are bound, (ii) any judgment, order or injunction of any court, arbitrator or
governmental agency, or (iii) any other contract or agreement, except for such
defaults and conditions that, individually or in the aggregate, would not
reasonably be expected to have an adverse change in or effect on the ability of
the Partnership to consummate any of the transactions contemplated hereby;
(f) the Common Units to be issued hereunder and sold to Purchaser
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
Revised Uniform Limited Partnership Act); and
(g) Since July 31, 2000, (i) the Partnership has made all filings
required to be made by the Securities Act and the Securities Exchange Act of
1934, as amended ("Exchange Act"); (ii) all filings by the Partnership with the
SEC, at the time filed (in the case of documents filed pursuant to the Exchange
Act) or when declared effective by the SEC (in the case of registration
statements filed under the Securities Act) complied in all material respects
with the applicable requirements of the Securities Act and the Exchange Act;
(iii) no such filing, at the time described above, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading; and (iv) all
financial statements contained or incorporated by reference therein complied as
to form when filed or, if applicable, as restated, in all material respects
with the rules and regulations of the SEC with respect thereto, were prepared
in accordance with United States generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as may be
indicated in the notes thereto), and fairly presented in all material respects
the financial condition and results of operations of the Partnership and its
subsidiaries, as applicable, at and as of the
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respective dates thereof and the consolidated results of its operations and
changes in cash flows for the periods indicated (subject in the case of
unaudited statements, to normal year-end audit adjustments).
4. Legend on Certificates. All certificates representing the Common Units
to be issued and sold by the Partnership hereunder shall bear a restrictive
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED, UNLESS SOLD OR OTHERWISE TRANSFERRED IN COMPLIANCE WITH
AGREEMENT UNDER WHICH THEY WERE PURCHASED, THE LIMITED PARTNERSHIP
AGREEMENT OF FERRELLGAS PARTNERS, L.P. AS IN EFFECT AT THE TIME OF
SALE OR TRANSFER AND (I) SUCH SECURITIES HAVE BEEN REGISTERED UNDER
THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS OR (II) AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE AND A LEGAL OPINION STATING THAT
SUCH EXEMPTION IS AVAILABLE HAS BEEN SUBMITTED TO FERRELLGAS PARTNERS,
L.P. BY COUNSEL TO THE HOLDER OF THIS CERTIFICATE, IN FORM AND
SUBSTANCE ACCEPTABLE TO FERRELLGAS PARTNERS, L.P. IN ITS SOLE
DISCRETION."
5. Indemnification. Purchaser acknowledges that the Partnership's offer
and sale of Common Units hereunder is based partially upon the representations,
warranties, covenants, agreements and other information contained herein and
made by Purchaser. Purchaser hereby agrees to indemnify and hold harmless the
Partnership, its general partner and their respective directors, officers,
partners, employees, consultants, representatives and agents against and from
any and all causes of action, charges, claims, damages, demands, liabilities,
losses, obligations, penalties and other recoveries and any and all related
costs and expenses (including, without limitation, reasonable attorneys' fees)
arising, directly or indirectly, from:
(a) any material breach by Purchaser of the representations,
warranties or covenants made by Purchaser herein or in any other material
supplied by Purchaser and related to the subject matter herein;
(b) any material omission of fact by Purchaser herein; and
(c) any sale, transfer or other distribution of the Common Units
purchased hereunder by Purchaser in violation of the Securities Act or any
securities laws of any applicable state or in violation of this Agreement or
the Partnership Agreement.
6. No Duty to Transfer in Violation Hereunder. The Partnership shall not
be required to:
(a) to transfer on its books any of the Common Units issued
hereunder that have been sold or transferred in violation of any of the
provisions set forth herein, the Partnership Agreement or the Securities Act;
or
(b) to treat as the owner of such Common Units, to accord the
right to vote as such owner or to pay distributions to, any transferee to whom
such Common Units have been so sold or transferred in violation of any of the
provisions set forth herein, the Partnership Agreement or the Securities Act.
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7. Notice. Any notice, request, instruction, correspondence or other
document to be given hereunder by either party to the other (herein
collectively called "Notice") shall be in writing and delivered in person or by
courier service requiring acknowledgment of receipt of delivery or mailed by
certified mail, postage prepaid and return receipt requested, or by telecopier,
as follows:
If to the Partnership, addressed to:
Ferrellgas Partners, L.P.
Xxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx,
Senior Vice President, Corporate Development
If to Purchaser, addressed to Purchaser's address set forth
on Schedule I hereto.
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. 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.
8. Lock-up Agreement. Purchaser covenants and agrees that Purchaser will
execute and deliver a lock-up agreement in form and substance satisfactory to
the underwriter in connection with the Partnership's proposed public offering
of Common Units, which lock-up agreement shall be the same as the lock-up
agreement required of the Partnership's directors, but in no case shall be for
a period in excess of 90 days after the Effective Date.
9. Successors and Assigns.
(a) This Agreement will inure to the benefit of the successors
and assigns of the Partnership and, subject to the restrictions on sale and
transfer set forth in this Agreement and the Partnership Agreement, be binding
on Purchaser and Purchaser's heirs, executors, administrators, successors and
assigns. Purchaser may assign its rights and obligations hereunder prior to the
earlier of (i) the Stockholders' Meeting or (ii) five (5) days prior to the
commencement of the Offering to (A) any wholly-owned subsidiary corporation of
such Purchaser or (B) during Purchaser's lifetime, to any of Purchaser's
Affiliates (as defined below) (either, a "Permitted Assignee"), provided that
an assignment to a spouse under this Section must be made during marriage and
not incident to divorce, provided, further, that any assignment of this
Agreement shall be made only in connection with a sale or any other disposition
of Company Common Stock (as defined in the Merger Agreement) owned by
Purchaser; and provided, finally, that prior to any such assignment of this
Agreement, such Permitted Assignee shall execute and deliver to the Partnership
an assignment instrument, in form and substance satisfactory to the
Partnership, wherein such Permitted Assignee (w) adopts this Agreement and the
Voting Agreement dated as of the date hereof to which Purchaser and the
Partnership are parties as if the Permitted Assignee was an original signatory
hereto, (x) assumes the obligations hereunder and thereunder, (y) affirms
Purchaser's representations and warranties with respect to the Permitted
Assignee and (z) makes such other representations and warranties as are
reasonably requested by the Partnership based on the Permitted Assignee's
status or type of entity. Notwithstanding anything to
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the contrary contained herein, any proposed assignment of this Agreement by
Purchaser shall at all times be subject to the approval of the Partnership in
its sole discretion with respect to the number of proposed Permitted Assignees.
(b) For purposes of this Agreement, (i) "Affiliate" means (A) any
Other Permitted Transferee of Purchaser; (B) any inter vivos trust whose
principal beneficiary is Purchaser or any Other Permitted Transferee of
Purchaser created during their respective lifetimes and not as a result of
death; and (C) the legal representative or guardian of Purchaser or any Other
Permitted Transferee of Purchaser appointed during their respective lifetimes
and not as a result of death; and (ii) "Other Permitted Transferee" means (A)
any person related by lineal or collateral consanguinity to Purchaser or to the
spouse of Purchaser; (B) the spouse of Purchaser or of any person described in
clause (A); and (C) all persons related to those persons described in clause
(A) or clause (B) by lineal or collateral consanguinity. For purposes of this
definition of "Other Permitted Transferee," (x) adopted persons shall be
considered the natural born child of their adoptive parents; (y) lineal
consanguinity is that relationship that exists between persons of whom one is
descended (or ascended) in a direct line from the other, as between son,
father, grandfather, great-grandfather; and (z) collateral consanguinity is
that relationship that exists between persons who have the same ancestors, but
who do not descend (or ascend) from the other, as between uncle and nephew, or
cousin and cousin.
10. Amendment and Waiver. No supplement, modification, amendment 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.
11. Survival. All representations, warranties, understandings, covenants
and agreements contained in this Agreement (including, without limitation, the
indemnification provisions hereof) shall survive the execution of this
Agreement, the issuance and delivery of the Common Units purchased hereunder
and the death, disability, liquidation, dissolution or termination (as
applicable) of Purchaser.
12. Governing Law. This Agreement shall be governed by, construed under,
and enforced in accordance with the laws of the State of Delaware, without
regard to its conflict of laws rules.
13. Execution in Counterparts. This Agreement may be executed in multiple
counterparts and by facsimile each of which shall be deemed an original and all
of which shall constitute one instrument.
14. Further Assurances. In connection with this Agreement and the
transactions contemplated hereby, Purchaser shall execute and deliver any
additional documents and instruments and perform any additional acts that may
be necessary or appropriate to effectuate and perform the provisions of this
Agreement and those transactions.
15. Severability. If any provision of this Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by decree of a court of last resort, the Partnership or
its representatives and Purchaser shall promptly meet and negotiate substitute
provisions for those rendered or declared illegal or unenforceable and amend
this Agreement accordingly, but all of the remaining provisions of this
Agreement shall remain in full force and effect.
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16. Entire Agreement. This Agreement and any documents referenced herein
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
Xxxxxxxxx agrees that:
(a) no person or entity, other than the Partnership or its their
respective agents and representatives, has made any representation, warranty,
covenant or agreement relating to this Agreement or the Common Units to be
purchased hereunder, other than those expressly set forth herein; and
(b) Purchaser has not relied upon any representation, warranty,
covenant or agreement relating to this Agreement or the Common Units to be
purchased hereunder, other than those referred to in clause (a) immediately
above.
17. Construction and Captions. Unless the context requires otherwise:
(a) any pronoun used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns, pronouns and verbs shall include the plural and vice versa;
(b) the term "include" or "includes" means includes, without
limitation, and "including" means including, without limitation; and
(c) The section headings appearing herein are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
multiple counterparts as of the date first above written.
FERRELLGAS PARTNERS, L.P.
By: XXXXXXXXXX, INC.,
its general partner
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Xxxxxx Vice President, Corporate Development
PURCHASER
/s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxxxx
Signature Page
SCHEDULE I
PURCHASER
AGGREGATE DOLLAR AMOUNT OF COMMON PURCHASER'S TAXPAYER IDENTIFICATION OR
PURCHASER'S NAME AND PRINCIPAL ADDRESS UNITS PURCHASED SOCIAL SECURITY NUMBER
-------------------------------------- --------------------------------- --------------------------------------
1. Xxxxxx X. Xxxxxxxxxx $15,000,000
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Schedule I - 1
SCHEDULE II
The term "accredited investor," as defined in Rule 501 of Regulation D
under the Securities Act and in the context of the Common Units subject to this
Agreement, means any person or entity that comes within any of the following
categories at the time of the purchase of the Common Units by that person or
entity and the issuance thereto of such Common Units by the Partnership.
2. (a) Any bank as defined in Section 3(a)(2) of the Securities Act, or
any savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary
capacity;
(b) any broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended;
(c) any insurance company as defined in Section 2(a)(13) of the
Securities Act;
(d) any investment company registered under the Investment Company of
1940, as amended, or a business development company as defined in Section
2(a)(48) of that Act;
(e) any Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958, as amended;
(f) any plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its political
subdivisions, for the benefit of its employees, if such plan has total assets
in excess of $5,000,000;
(g) any employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974, as amended, if the investment decision
is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with investment decisions made
solely by persons that are accredited investors;
3. any private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940, as amended;
4. any organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the Common Units
being issued and sold hereunder, with total assets in excess of $5,000,000;
5. any director, or executive officer of the general partner of the
Partnership;
6. any natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of the purchase of the Common Units exceeds
$1,000,000;
7. any natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with that person's spouse
in excess of $300,000 in each of those years and has a reasonable expectation
of reaching the same income level in the current year;
Schedule II - 1
8. any trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the Common Units being issued and sold
hereunder, whose purchase is directed by a sophisticated person as described in
Rule 506(b)(2)(ii) of the Securities Act; and
9. any entity in which all of the equity owners are accredited investors.
Schedule II - 2
