EXHIBIT 99.7
FERRELLGAS PARTNERS, L.P.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made and entered
into by and among Ferrellgas Partners, L. P., a Delaware limited partnership
("Company"), and the holder of Units (as defined herein) whose name appears on
the signature pages of this Agreement.
ARTICLE I
DEFINITIONS
Certain Definitions. As used in this Agreement:
1.1 The term "Affiliate" shall mean any person or entity directly
or indirectly controlling, controlled by, or under common control with the
Company. As used in this definition, the term "control," including the
correlative terms "controlling," "controlled by," and "under common control
with," shall mean possession, directly or indirectly, of a majority of the
outstanding voting securities of such person or entity.
1.2 The term "Closing Date" shall mean the date of the closing of
Investment.
1.3 The term "Holder" shall mean any party who is a signatory to
this Agreement and, at the time of determination of whether such party is a
"Holder," holds Units of record.
1.4 The term "Investment" shall mean the closing of the
transactions contemplated by the Unit Purchase Agreement and the Real Property
Contribution Agreement dated as of the date hereof between the Company and Xxxxx
X. Xxxx.
1.5 The term "SEC" shall mean the Securities and Exchange
Commission and any successor agency.
1.6 The term "Securities Act" shall mean the Securities Act of
1933, as amended.
1.7 The term "Unit Purchase Agreement" shall mean the Unit
Purchase Agreement dated as of the date hereof among the Company and the Holder
(the "Unit Purchase Agreement")
1.8 The term "Units" shall mean common units representing limited
partnership interests of the Company.
ARTICLE II
REGISTRATION
2.1 Required Registration. After the Closing Date, the Company
shall prepare and file a registration statement on Form S-3 under the Securities
Act covering the offer
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and sale by the Holder of the Units issued in the Investment and shall cause
such registration statement to become effective as soon thereafter as is
practicable, but in no event later than 90 days after the Closing Date. The
Company shall be obligated to prepare, file and cause to become effective only
one registration statement (on Form S-3 or any successor form promulgated by the
SEC ("Form S-3")) pursuant to this Section 2.1, provided such registration
statement remains effective for the entire period mentioned in Section 2.2(a).
2.2 Registration Procedure. In connection with the registration of
the Units under the Securities Act, the Company will:
(a) prepare and file with the SEC a registration
statement on Form S-3 or any successor form with respect to the offer
and sale by the Holder of such securities, and cause such registration
statement to become, and use its reasonable best efforts to cause such
registration statement to remain, effective for the earlier of one year
from the Closing Date or until such time as all the Units issued in the
Investment are sold.
(b) prepare and file with the SEC as soon as is
reasonably practicable such amendments to such registration statement
and supplements to the prospectus contained therein as may be necessary
to keep such registration statement effective for such period as may be
reasonably necessary to permit such Holder to effect the sale of such
securities, not to exceed the earlier of one year from the Closing Date
or until such time as all the Units in the Investment are sold;
(c) furnish to the Holder such reasonable number of
copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as such Holder may reasonably
request in order to facilitate the sale of such securities;
(d) use its reasonable best efforts to register or
qualify the securities covered by such registration statement under
such state securities or blue sky laws of such jurisdictions as such
participating Holder may reasonably request in writing, except that the
Company shall not for any purpose be required to execute a general
consent to service of process or to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified and take
all steps necessary to cause the Units to be listed for trading on any
securities exchange on which similar Units are listed;
(e) notify the Holder promptly after it shall receive
notice thereof of the time when such registration statement (and any
amendment thereto) has become effective or a supplement to any
prospectus forming a part of such registration statement has been
filed;
(f) as promptly as practicable after becoming aware of
such event, notify such Holder promptly of any request by the SEC for
the amending or supplementing of such registration statement or
prospectus or for additional information;
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(g) prepare and file with the SEC, as soon as
practicable, upon the request of any such Holder, any amendments or
supplements to such registration statement or prospectus which, in the
opinion of counsel for such Holder (and concurred in by counsel for the
Company), is required under the Securities Act or the rules and
regulations thereunder in connection with the offer and sale or other
distribution of the Units by such Holder;
(h) promptly prepare and file with the SEC and promptly
notify such Holder of the filing of such amendment or supplement to
such registration statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a prospectus
relating to such securities is required to be delivered under the
Securities Act, any event shall have occurred as the result of which
any such prospectus or any other prospectus as then in effect would
include an untrue statement of a material fact or omit to state any
material fact necessary to make statements therein, in the light of the
circumstances in which they were made, not misleading. In such event,
the Company shall provide each Holder, as promptly as is reasonably
practicable, that number of copies of the prospectus so amended or
supplemented as is reasonably required by each Holder;
(i) promptly after it shall receive notice or obtain
knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for that purpose shall
immediately notify the Holder thereof and promptly use its reasonable
best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued;
(j) cooperate with the selling Holder to facilitate the
timely preparation and delivery of certificates representing the Units
to be sold and not bearing any Securities Act legend; and enable
certificates for such Units to be issued for such numbers of Units and
registered in such names as the selling Holder may reasonably request
at least two business days prior to the sale of such Units;
(k) provide Holder and its representatives the
opportunity to conduct a reasonable due diligence inquiry of Company's
pertinent financial and other records and make available its officers,
directors and employees for questions regarding such information as it
relates to information contained in the registration statement, subject
to all information received by the Holder and its representatives being
kept confidential; and
(l) provide Holder and its representatives the opportunity to
review the registration statement and all amendments thereto a
reasonable period of time prior to their filing with the SEC.
2.3 Expenses. The Company shall bear the following fees, costs and
expenses: all registration and filings fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, all internal expenses
of the Company, all expenses of complying with the rules of the NASD and the New
York Stock Exchange
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and all legal fees and disbursements and other expenses of complying with state
securities or blue sky laws of any jurisdictions in which the securities to be
offered are to be registered or qualified. Fees and disbursements of counsel and
accountants for the Holder, underwriting discounts and commissions and transfer
taxes and any other expenses incurred by the Holder not expressly included
above, shall be borne by the Holder.
ARTICLE III
AGREEMENTS OF HOLDER
3.1 Certain Agreements by Holder. Each Holder of Units covered by
a registration statement hereunder, (1) upon receipt of a notice from the
Company of the occurrence of any event of the kind described in Section 2.2(h),
shall forthwith discontinue such Holder's disposition of Units pursuant to the
registration statement covering such Holder's Units until such Holder receives
the copies of the supplemented or amended prospectus contemplated by Section
2.2(h) and (2) if so directed by the Company, shall deliver to the Company, at
the Company's expense, all copies (other than permanent file copies) then in
such Holder's possession of the prospectus covering such Units that was in
effect at the time of receipt of such notice.
3.2 Information. Upon written request by the Company, each Holder
shall furnish the Company with information regarding such Holder and intended
distribution of such Holder's Units or other securities of the Company included
in such registration for the purpose of preparing the registration statement, to
the extent that such information is required to comply with applicable legal
requirements.
ARTICLE IV
INDEMNIFICATION
4.1 Indemnification by the Company. The Company shall indemnify
and hold harmless, with respect to any registration statement filed by it, to
the fullest extent permitted by law, each Holder who is a seller of Units
covered by such registration statement, its officers, directors, employees,
agent, general or limited partners, each underwriter of such Units (and the
directors, officers, employees and agents thereof), and each other person,
partnership, trust, corporation, joint venture, unincorporated organization or
government or any department or agency thereof ("Person"), if any, who controls
such Holder or underwriter within the meaning of the Securities Act
(collectively, "Holder Indemnified Parties") against all losses, claims,
damages, liabilities and expenses, joint or several, (including reasonable fees
and expenses of one counsel representing all Holder Indemnified Parties with
respect to each proceeding under which indemnification is sought) and any
amounts paid in settlement effected with the Company's consent, which consent
shall not be unreasonably withheld) to which any such Holder Indemnified Party
may become subject under the Securities Act, at common law or otherwise, insofar
as such losses, claims, damages, liabilities or expenses (or actions or
proceedings, whether commenced or threatened, in respect thereof) are caused by
(1) any untrue statement or alleged untrue statement of a material fact
contained in any registration statement in which Units were included as
contemplated hereby or the
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omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (2)
any untrue statement or alleged untrue statement of a material fact contained in
any preliminary, final or summary prospectus, together with the documents
incorporated by reference therein (as amended or supplemented if the Company
shall have filed with the Commission any amendment thereof or supplement
thereto), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (3) any violation by the Company of any federal, state or common
law rule or regulation applicable to the Company and relating to action of or
inaction by the Company in connection with any such registration; and in each
such case, the Company shall reimburse the Holder Indemnified Parties as
incurred for any reasonable legal fees and expenses of one counsel representing
all Holder Indemnified Parties with respect to each proceeding under which
indemnification is sought or any other expenses incurred by any of them in
connection with investigating or defending any such loss, claim, damage,
liability, expense, action or proceeding; provided, however, that the Company
shall not be liable to any such Holder Indemnified Party in any such case to the
extent that any such loss, claim, damage, liability or expense (or action or
proceeding, whether commenced or threatened, in respect thereof) arises out of
or is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement or amendment thereof or
supplement thereto or in any such preliminary, final or summary prospectus in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any such Holder Indemnified Party relating to such
Holder Indemnified Party for use in the preparation thereof.
4.2 Indemnification by Holder. Each Holder of Units participating
in any registration hereunder, severally and not jointly, shall indemnify and
hold harmless, to the extent permitted by applicable law, the Company, its
directors, officers, employees and agents, and each Person who controls the
Company (within the meaning of the Securities Act) (collectively, "Company
Indemnified Parties") against all losses, claims, damages, liabilities and
expenses, joint or several (including reasonable fees of counsel and any amounts
paid in settlement effected with such Holder's consent, which consent shall not
be unreasonably withheld) to which any Company Indemnified Party may become
subject under the Securities Act, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions or proceedings,
whether commenced or threatened, in respect thereof) are caused by (1) any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement in which such Holder's Units were included or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (2)
any untrue statement or alleged untrue statement of a material fact contained in
any preliminary, final or summary prospectus, together with the documents
incorporated by reference therein (as amended or supplemented if the Company
shall have filed with the Commission any amendment thereof or supplement
thereto), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading to the extent, but only to the extent, in the cases described in
clauses (1) and (2), that such untrue statement or
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omission is contained in any information furnished by such Holder relating to
such Holder expressly for use in the preparation thereof and if the Company does
not know, at the time such information is included in the registration
statement, prospectus, preliminary prospectus, amendment or supplement, that
such information is false or misleading, or (3) any violation by such Holder of
any federal, state or common law, rule or regulation applicable to such Holder
and relating to action of or inaction by such Holder in connection with any such
registration.
4.3 Conduct of Indemnification of Proceedings. Promptly after
receipt by an indemnified party under Section 4.1 or 4.2 of written notice of
the commencement of any action, suit, proceeding, investigation or threat
thereof made in writing with respect to which a claim for indemnification may be
made pursuant to this Article IV, such indemnified party shall, if a claim in
respect thereto is to be made against an indemnifying party, give written notice
to the indemnifying party of the threat or commencement thereof; provided,
however, that the failure so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. If any such claim or action referred to under Section 4.1 or 4.2 is
brought against any indemnified party and it then notifies the indemnifying
party of the threat or commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other indemnifying party similarly notified, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party). After notice from the indemnifying party to such indemnified party of
its election so to assume the defense of any such claim or action, the
indemnifying party shall not be liable to such indemnified party under this
Article IV for any legal expenses of counsel or any other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation unless the indemnifying party has failed
to assume the defense of such claim or action or to employ counsel reasonably
satisfactory to such indemnified party. The indemnifying party shall not be
required to indemnify the indemnified party with respect to any amounts paid in
settlement of any action, proceeding or investigation entered into without the
written consent of the indemnifying party, which consent shall not be
unreasonably withheld. No indemnifying party shall consent to the entry of any
judgment or enter into any settlement without the consent of the indemnified
party unless (1) such judgment or settlement does not impose any obligation or
liability upon the indemnified party other than the execution, delivery or
approval thereof, and (2) such judgment or settlement includes as an
unconditional term thereof the giving by the claimant of plaintiff to such
indemnified party of a full release and discharge from all liability in respect
of such claim for all persons that may be entitled to or obligated to provide
indemnification or contribution under this Article IV.
4.4 Additional Indemnification. Indemnification similar to that
specified in the preceding subsections of this Article IV (with appropriate
modifications) shall be given by the Company and each Holder with respect to any
required registration or qualification of securities under any state securities
or blue sky laws.
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ARTICLE V
MISCELLANEOUS
5.1 Termination. This Agreement and all rights and objections of
the parties hereto under this Agreement (other than obligations under Article IV
hereto) shall terminate one year after the Closing Date.
5.2 Subsequent Holder. Notwithstanding of the foregoing and
notwithstanding Section 5.11 hereof, no rights hereunder shall inure to the
benefit of, or be exercisable by, any transferee or assignee acquiring Units in
a public sale or public distribution.
5.3 Rule 144 Procedures. With a view to making available to the
Holder the benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the SEC that may at any time permit a Holder to sell
securities of the Company to the public without registration, the Company agrees
to:
(a) use its reasonable best efforts to make and keep
public information available, as those terms are understood and defined
in SEC Rule 144;
(b) use its reasonable best efforts to file with the SEC
in a timely manner all reports and other documents required of the
Company under the Securities Act and the Securities and Exchange Act of
1934 (as amended, the "1934 Act");
(c) furnish to any Holder, so long as the Holder owns any
Units, forthwith upon request (i) a written statement by the Company,
if true, that it has complied with the reporting requirements of SEC
Rule 144, the Securities Act and the 1934 Act, (ii) a copy of the most
recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or
regulation of the SEC which permits the selling of any such securities
without registration; and
(d) in connection with any sale, transfer, or other
disposition by any Holder of any Units pursuant to Rule 144 under the
Securities Act, the Company shall cooperate with such Holder to
facilitate the timely preparation and delivery of certificates
representing Units to be sold and not bearing any Securities Act
legend, and enable certificates for such Units to be for such number of
Units and registered in such names as the Holder may reasonably request
at least two days prior to any such sale of Units, when such request is
accompanied by a "will sell" letter from such Seller's broker with
reference to compliance with paragraph (g) of Rule 144.
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5.4 Employee Matters. Each Holder, if an employee of the Company
or any of its subsidiaries, acknowledges and agrees that neither the purchase of
securities of the Company by such Holder nor the execution of this Agreement by
the Company or such Holder or the performance of the Company's or Holder's
obligations hereunder creates any obligation whatsoever by Company or any of its
subsidiaries to continue such Holder's employment.
5.5 Notices and Other Communications. All notices, requests and
other communications required or permitted to be given to the Company or any
Holder in connection herewith (1) must be in writing and (2) may be served
either by (a) depositing the same in the United States mail, full postage
prepaid, certified or registered with return receipt requested, (b) delivering
the same by a nationally recognized air courier service requiring acknowledgment
of delivery, full delivery cost paid, (c) delivering the same in person, or (d)
sending a telecopy of the same (confirmed by appropriate answerback), confirmed
with a copy thereof delivered either by mail or air courier service or in person
as provided herein. Any such notice, request or other communication shall be
effective only if and when it is received by the addressee; provided that notice
received by telecopier other than during the recipient's normal business hours
will be effective at the beginning of the recipient's next business day. For the
purposes hereof, the addresses of the parties hereto are as follows: (1) the
Company: Ferrellgas Partners, Xxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Senior Vice President, Corporate Development; and (2) the Holder -
the addresses indicated in the Unit Purchase Agreement. Any party hereto may
change its address for the purposes hereof by giving written notice of such
change of address to the Company if a Holder, and to all Holder, if the Company,
in the manner provided herein.
5.6 Entire Agreement. This Agreement constitutes the full
understanding of the parties and a complete and exclusive statement of the terms
and conditions of their agreement relating to the subject matter hereof and
supersedes all prior negotiations, understandings and agreements, whether
written or oral, between the parties, their affiliates, and their respective
principals, shareholders, directors, officers, employees, consultants and agents
with respect thereto.
5.7 Amendments and Waivers. Except as otherwise provided herein,
no alteration, modification, amendment, change or waiver of any provision of
this Agreement shall be effective or binding on any party hereto unless the same
is in writing and is executed by the Company and the Holder.
5.8 Modification and Severability. If a court of competent
jurisdiction declares that any provision of this Agreement is illegal, invalid
or unenforceable, then such provision shall be modified automatically to the
extent to make such provision fully legal, valid or enforceable. If such court
does not modify any such provision as contemplated herein, but instead declares
it to be wholly illegal, invalid or unenforceable, then such provision shall be
severed from this Agreement, this Agreement and the rights and obligations of
the parties hereto shall be construed as if this Agreement did not contain such
severed provision, and this Agreement otherwise shall remain in full force and
effect.
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5.9 Enforceability. This Agreement shall be enforceable by and
against the Company, the Holder and its spouse, guardians, heirs, legatees,
executors, legal representatives, administrators, and permitted successors and
assignees.
5.10 Successors and Assigns. This Agreement shall be binding upon
and (except as otherwise provided in Section 5.2) inure to the heirs, executors,
administrators, successors, assigns, and in the case of the Holder, transferees
of the parties hereto.
5.11 Remedies. Each party hereto acknowledges that in the event of
any breach of this Agreement by such party, the other parties hereto (1) would
be irreparably and immediately harmed by such breach, (2) could not be made
whole by monetary damages, and (3) shall be entitled to temporary and permanent
injunctions (or their functional equivalents) to prevent any such breach and/or
to compel specific performance with this Agreement, in addition to all other
remedies to which such parties may be entitled at law or in equity. The remedies
of each party hereto under this Agreement shall be cumulative of each other and
of the remedies available at law or in equity. Any party's full or partial
exercise of any such remedy shall not preclude any subsequent exercise by such
party of the same or any other remedy.
5.12 Plan of Merger. This Agreement shall terminate upon the
termination of the Agreement and Plan of Merger dated as of the date hereof
among FCI Trading Corp., Diesel Acquisition LLC, Xxxxxxx Companies Inc. and Blue
Rhino Corporation.
5.13 Governing Law. This Agreement shall be governed by, construed
under, and enforce in accordance with the laws of the State of Delaware without
reference to the conflict-of-laws provisions thereof.
5.14 Multiple Counterparts. This Agreement may be executed by the
parties hereto in multiple counterparts, each of which shall be deemed an
original for all purposes, and all of which together shall constitute one and
the same instrument.
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This Agreement is executed and delivered by the parties hereto as of
the 8th day of February, 2004.
Ferrellgas Partners, L.P.
By: Ferrellgas, Inc..
its general partner
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Xxxxxx Vice President, Corporate
Development
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
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