As filed with the Securities and Exchange Commission on March 15, 2002.
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
Ferrellgas Partners, L.P.
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(Exact name of Registrant as specified in its charter)
Delaware 43-1698480
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One Liberty Plaza, Liberty, Missouri, 64068
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(Address, including zip code, of Registrant's principal executive offices)
SECOND AMENDED AND RESTATED
FERRELLGAS UNIT OPTION PLAN
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(Full title of the Plan)
James E. Ferrell
Chairman, President and Chief Executive Officer
Ferrellgas, Inc. (general partner of Ferrellgas Partners, L.P.)
One Liberty Plaza
Liberty, Missouri 64068
(816) 792-1600
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(Name, address and telephone number, including area code, of agent for service)
Copy to:
David L. Ronn
Mayer, Brown, Rowe & Maw
700 Louisiana, Suite 3600
Houston, Texas 77002
(713) 546-0525
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed
Title of securities Amount to Offering price maximum aggregate Amount of
to be registered be registered (1) (2) per unit (2)(3) offering price (2)(3) Registration fee
- --------------------- ----------------------- --------------------- ----------------------- ------------------
Common Units 500,000 units $18.05 $9,025,600 $830.36
===================== ======================= ===================== ======================= ==================
(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended (the "Act"),
this Registration Statement on Form S-8 also covers such additional common units
of Ferrellgas Partners, L.P. (the "Partnership") as may become issuable to
prevent dilution resulting from stock splits, stock dividends or similar
transactions.
(2) The 500,000 common units representing limited partnership interests in the
Partnership being registered by this Registration Statement on Form S-8 (the
"Additional Units") are in addition to the 850,000 common units currently
registered pursuant to a registration statement on Form S-8 filed by the
Partnership on September 23, 1999 (Registration No. 333-87633) (the "September
1999 Form S-8"), in connection with the Amended and Restated Ferrellgas Unit
Option Plan. A total registration fee of $2,917.20 was paid by the Partnership
with respect to the September 1999 Form S-8. The additional registration fee of
$830.36 is paid with respect to only the Additional Units registered hereby.
(3) Calculated solely for the purpose of computing the registration fee pursuant
to Instruction E to Form S-8 and Rules 457(c) and (h) of the Act, the filing fee
for the Additional Units was calculated based upon the sum of the following: i)
388,000 Additional Units already issued at a strike price of $17.90 per unit for
a maximum offering price of $6,945,200 and ii) the 112,000 Additional Units not
yet issued at the average of the high and low prices reported for one common
unit of the Partnership on the New York Stock Exchange on March 12, 2002, which
was $18.575 per unit, for a total maximum offering price for the Additional
Units of $2,080,400.
EXPLANATORY NOTE
Effective April 19, 2001, the Board of Directors of Ferrellgas, Inc., the
general partner of Ferrellgas, L.P. (the "Operating Partnership") and of the
Partnership (the "General Partner"), approved the amendment and restatement of
the Amended and Restated Ferrellgas Unit Option Plan (the "Plan") to, among
other things, increase the number of common units available for issuance
thereunder by 500,000 common units, thereby bringing the total common units
reserved for issuance under the Second Amended and Restated Ferrellgas Unit
Option Plan (the "Amended Plan") from 850,000 common units to 1,350,000 common
units. Other amendments to conform the Plan to current law were also made.
This increase was necessary to have options and common units available so
as to encourage selected employees of the General Partner to develop a
proprietary interest in the growth and performance of the Partnership, to
generate an increased incentive to contribute to the Partnership's future
success and prosperity, thus enhancing the value of the Partnership for the
benefit of its unitholders, and to enhance the ability of the General Partner to
attract and retain key individuals who are essential to the progress, growth and
profitability of the Partnership by giving those employees the opportunity to
acquire common units.
The Partnership had previously registered 850,000 common units representing
limited partnership interests in the Partnership for issuance under the Plan.
The registration of those 850,000 common units was effected on the September
1999 Form S-8. This Registration Statement on Form S-8 (the "Registration
Statement") is being filed to register the Additional Units. Accordingly,
pursuant to General Instruction E of Form S-8 and except as supplemented by the
information set forth below, the contents of the September 1999 Form S-8 are
hereby incorporated herein by reference.
Part I
INFORMATION REQUIRED IN
THE SECTION 10(a) PROSPECTUS
Documents containing the information specified in Part I of Form S-8 have
been and/or will be sent or given to eligible participants as specified by Rule
428(b)(1) of the Act. In accordance with the instructions to Part I of Form S-8,
these documents will not be filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under the Securities
Act. These documents and the documents incorporated by reference pursuant to the
Explanatory Note above and Item 3 of Part II of this Registration Statement,
taken together, constitute the prospectus as required by Section 10(a) of the
Act.
Part II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of the Partnership, which are on file with the
Commission, were previously filed pursuant to the Act or the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and are incorporated by reference
herein and shall be deemed to be a part hereof:
(a) the Partnership's Annual Report on Form 10-K for the fiscal year ended
July 31, 2001, filed with the Commission on October 25, 2001;
(b) the Partnership's Quarterly Reports on Form 10-Q for the fiscal
quarters ended October 31, 2001, and January 31, 2002, filed with the
Commission on December 13, 2001, and March 15, 2002, respectively;
(c) the Partnership's Current Reports on Form 8-K, furnished to the
Commission on September 13, 2001, November 20, 2001, and February 20,
2002;
(d) the Partnership's Current Report on Form 8-K, filed with the
Commission on December 12, 2001; and
(e) the description of the Partnership's common units contained in the
Partnership's Registration Statement on Form S-3/A (Registration No.
333-71111), filed with the Commission on February 5, 1999, and as
supplemented by the Partnership's Prospectus Supplement filed with the
Commission pursuant to Rule 424(b)(2) of the Act on June 6, 2001.
All documents filed by the Partnership pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all securities
so offered then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
For purposes of this Registration Statement, any statement contained in a
report, document or appendix incorporated or deemed incorporated by reference in
this Registration Statement will be deemed modified or superseded to the extent
that a statement contained in this Registration Statement or in any subsequently
filed report, document or appendix which also is or is deemed incorporated by
reference modifies or supersedes that statement in that report, document or
appendix. Any statement so modified or superseded will not be deemed, except as
modified or superseded, to constitute a part of this Registration Statement.
Upon the written or oral request of any person to whom this Registration
Statement has been delivered, we will provide without charge to that person a
copy of any of the information that has been incorporated by reference into this
Registration Statement but not delivered with it (excluding exhibits thereto
unless such exhibits are specifically incorporated by reference into such
information). Requests should be directed to: Ferrellgas Partners, L.P., One
Liberty Plaza, Liberty, Missouri, 64068, (816) 792-1600, Attn: Investor
Relations.
Item 6. Indemnification of Directors and Officers.
The partnership agreements of the Partnership and the Operating Partnership
provide that the Partnership or the Operating Partnership, as the case may be
and subject to any limitations expressly provided in the partnership agreement
of either partnership, shall indemnify and hold harmless to the fullest extent
permitted by current applicable law or as such law may hereafter be amended
(but, in the case of any such amendment, only to the extent that the amendment
permits either partnership to provide broader indemnification rights) certain
persons (each, an "Indemnitee") from and against any and all losses, claims,
damages, liabilities (joint or several), expenses (including, without
limitation, legal fees and expenses), judgments, fines, penalties, interest,
settlements and other amounts arising from any and all claims, demands, actions,
suits or proceedings, whether civil, criminal, administrative or investigative,
in which any Indemnitee may be involved, or is threatened to be involved, as a
party or otherwise, by reason of their status as (i) the General Partner, a
former General Partner, or any of their affiliates, (ii) an officer, director,
employee, partner, agent or trustee of either partnership, the General Partner,
any former General Partner, or any of their affiliates or (iii) a person or
entity serving at the request of either partnership in another entity in a
similar capacity.
This indemnity is available only if the Indemnitee acted in good faith, in
a manner in which the Indemnitee believed to be in, or not opposed to, the best
interests of the applicable partnership and, with respect to any criminal
proceeding, had no reasonable cause to believe its conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere, or its equivalent, shall not of
itself create a presumption that the Indemnitee acted in a manner contrary to
that specified in the immediately preceding sentence. Any indemnification shall
be made only out of the assets of the applicable partnership and the General
Partner shall not be personally liable for any indemnification and shall have no
obligation to contribute or loan any money or property to the applicable
partnership to enable it to effectuate any indemnification. In no event may an
Indemnitee subject the limited partners of the applicable partnership to
personal liability by reason of being entitled to indemnification.
To the fullest extent permitted by current applicable law or as such law
may hereafter be amended (but, in the case of such amendment, only to the extent
that the amendment permits the Partnership to provide broader indemnification
rights), expenses (including, without limitation, legal fees and expenses)
incurred by an Indemnitee in defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the applicable partnership
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the applicable partnership of an undertaking by or on behalf of
the Indemnitee to repay such amount if it shall ultimately be determined by a
court of competent jurisdiction that the Indemnitee is not entitled to
indemnification.
The Operating Partnership has, to the extent commercially reasonable,
purchased and currently maintains (or reimburses the General Partner or its
affiliates for the cost of) insurance, on behalf of the General Partner and such
other persons or entities as the General Partner has determined, including
particular other Indemnities, against any liability that may be asserted against
or expense that may be incurred by such person or entity in connection with
either the Operating Partnership or the Partnerships' activities or in
connection with such person's or entity's activities related to either
partnership in such person's or entity's professional capacity, regardless of
whether the Partnership and the Operating Partnership would have the power to
indemnify such person or entity against such liability under the provisions of
either partnerships' applicable partnership agreement.
An Indemnitee shall not be denied indemnification by the applicable
partnership, in whole or in part, because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies so long as the
transaction was otherwise permitted by the terms of the applicable partnership
agreement. Notwithstanding anything to the contrary set forth in the applicable
partnership agreement, no Indemnitee shall be liable for monetary damages to the
applicable partnership, the limited partners, their assignees or any other
persons or entities who have acquired interests in common units of the
Partnership, for losses sustained or liabilities incurred as a result of any act
or omission if such Indemnitee acted in good faith. Also, the General Partner
shall not be responsible for any misconduct or negligence on the part of any
agent appointed by the General Partner in good faith to exercise any of the
powers granted to the General Partner or to perform any of the duties imposed
upon it pursuant to the applicable partnership agreement.
The Certificate of Incorporation and bylaws of the General Partner also
provide for similar indemnification rights and benefits for its officers and
directors from and against any and all losses, claims, damages, liabilities
(joint or several), expenses (including, without limitation, legal fees and
expenses), judgments, fines, penalties, interest, settlements and other amounts
arising from any and all claims, demands, actions, suits or proceedings, whether
civil, criminal, administrative or investigative, in which any officer or
director of the General Partner may be involved, or is threatened to be
involved, as a party or otherwise; provided, however, the officers or directors
must have acted in good faith, in a manner in which such person or entity
believed to be in, or not opposed to, the best interests of the General Partner
and, with respect to any criminal proceeding, had no reasonable cause to believe
its conduct was unlawful. The General Partner is also under similar obligations
to advance expenses to its officers and directors relating to indemnified claims
and the General Partner has, to the extent commercially reasonable, purchased
and currently maintains insurance on behalf of its officers and directors.
Furthermore, the directors of the General Partner are not personally liable
to the General Partner or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the General Partner or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit.
The General Partner has also entered into employment agreements with
certain of its directors and officers. Pursuant to these employment agreements,
the General Partner has contractually agreed to indemnify these officers and
directors generally in accordance with the indemnification terms and provisions
set forth above. Some of these employment agreements also provide that the
General Partner shall indemnify such director or officer when they were or are a
party or are threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the General Partner to procure a
judgment in its favour by reason of the fact that such director or officer is or
was a director or officer of the General Partner, or is or was serving at the
request of the General Partner as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
such director or officer in connection with the defense or settlement of such
action or suit if such director or officer acted in good faith and in a manner
that such director or officer reasonably believed to be in or not opposed to the
best interests of the General Partner and except that no indemnification
pursuant to the employment agreements shall be made in respect of any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable to the General Partner unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such directors or officers are fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Generally, any indemnification under these employment agreements (unless
ordered by a court) shall be made by the General Partner only as authorized in
each specific case upon a determination, in accordance with the procedures set
forth in the applicable employment agreement, that indemnification of such
director or officer is proper in the circumstances because such director or
officer has met the applicable standard of conduct set forth in their particular
employment agreement. Such determination shall be made (1) by a majority vote of
the board of directors of the General Partner who are not parties to such
action, suit or proceeding, even though less than a quorum, or (2) if there are
no such directors or, if such directors so direct, by independent legal counsel
in a written opinion, or (3) by the stockholders of the General Partner. Also,
if such director or officer institutes any legal action to enforce such
director's or officer's rights under their employment agreement, or to recover
damages for breach of their employment agreement, such director or officer, if
such director or officer prevails in whole or in part, shall be entitled to
recover from the General Partner all fees and expenses (including attorneys'
fees) incurred by such director or officer in connection therewith.
None of the indemnification rights described herein are exclusive of any
other rights to which an Indemnitee, or other applicable person, may be entitled
under any bylaw, agreement, vote of stockholders or unitholders, as the case may
be, or disinterested directors, as a matter of law or otherwise, both as to
action in the Indemnitee's, or other applicable person's, official capacity with
either partnership or the General Partner and as to action in another capacity
while holding such office, and shall continue after the Indemnity, or other
applicable person, has ceased to be an officer or director of either partnership
or the General Partner, and shall inure to the benefit of the heirs, executors
and administrators of the Indemnity, or other applicable person.
Item 8. Exhibits.
Number Description
4.1 Third Amended and Restated Agreement of Limited Partnership of
Ferrellgas Partners. L.P. dated as of April 6, 2001. Incorporated by
reference to Exhibit 3.1 to the Partnership's Current Report on Form
8-K filed with the Commission on April 6, 2001.
4.2 Second Amended and Restated Ferrellgas Unit Option Plan. Incorporated
by reference to Exhibit 10.1 to the Partnership's Current Report on
Form 8-K filed with the Commission on June 5, 2001.
4.3 Form of Certificate Evidencing Common Units. Incorporated by reference
to Exhibit A to the Third Amended and Restated Agreement of Limited
Partnership of Ferrellgas Partners. L.P., filed as Exhibit 3.1 to the
Partnership's Current Report on Form 8-K filed with the Commission on
April 6, 2001.
* 5.1 Opinion of Mayer, Brown, Rowe & Maw as to the legality of the
common units of the Partnership being registered hereunder.
*23.1 Consent of Mayer, Brown, Rowe & Maw (contained in Exhibit 5.1
herewith).
*23.2 Consent of Deloitte & Touche LLP.
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* filed herewith
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Liberty, State of Missouri, on March 15, 2002.
FERRELLGAS PARTNERS, L.P.
By: FERRELLGAS, INC., its General Partner
By: /s/ James E. Ferrell
-----------------------------------------------
James E. Ferrell
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933 this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ James E. Ferrell Chairman, President and
- -------------------- Chief Executive Officer
James E. Ferrell (Principal Executive Officer) March 15, 2002
/s/ A. Andrew Levison Director March 15, 2002
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A. Andrew Levison
/s/ Elizabeth T. Solberg Director March 15, 2002
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Elizabeth T. Solberg
/s/ Michael F. Morrisey Director March 15, 2002
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Michael F. Morrisey
/s/ Kevin T. Kelly Senior Vice President,
- ------------------ Chief Financial Officer
Kevin T. Kelly (Principal Financial and
Accounting Officer) March 15, 2002
Exhibit Index
Exhibit Number Description
4.1 Third Amended and Restated Agreement of Limited Partnership of
Ferrellgas Partners. L.P. dated as of April 6, 2001.
Incorporated by reference to Exhibit 3.1 to the Partnership's
Current Report on Form 8-K filed with the Commission on April
6, 2001.
4.2 Second Amended and Restated Ferrellgas Unit Option Plan.
Incorporated by reference to Exhibit 10.1 to the Partnership's
Current Report on Form 8-K filed with the Commission on June
5, 2001.
4.3 Form of Certificate Evidencing Common Units. Incorporated by
reference to Exhibit A to the Third Amended and Restated
Agreement of Limited Partnership of Ferrellgas Partners. L.P.,
filed as Exhibit 3.1 to the Partnership's Current Report on
Form 8-K filed with the Commission on April 6, 2001.
* 5.1 Opinion of Mayer, Brown, Rowe & Maw as to the legality of the
common units of the Partnership being registered hereunder.
*23.1 Consent of Mayer, Brown, Rowe & Maw (contained in Exhibit 5.1
herewith).
*23.2 Consent of Deloitte & Touche LLP.
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* filed herewith
Exhibit 5.1
MAYER, BROWN, ROWE & MAW
700 Louisiana Street
Suite 3600
Houston, Texas 77002-2730
MAIN TELEPHONE
(713) 221-1651
MAIN FAX
(713) 224-6410
March 15, 2002
Ferrellgas Partners, L.P.
One Liberty Plaza
Liberty, Missouri, 64068
Re: Registration Statement on Form S-8 regarding the registration of
500,000 additional Common Units representing limited partnership
interests in Ferrellgas Partners, L.P. (the "Partnership")
Ladies and Gentlemen:
We are acting as special counsel to the Partnership in connection with
the registration under the Securities Act of 1933, as amended (the "Securities
Act"), of 500,000 additional common units representing limited partnership
interests in the Partnership (the "Units"), to be offered pursuant to the Second
Amended and Restated Ferrellgas Unit Option Plan (the "Plan"). To effect the
registration, the Partnership is filing with the Securities and Exchange
Commission (the "Commission") under the Securities Act a Registration Statement
on Form S-8 (the "Registration Statement") relating to the Units.
We have examined originals or copies of (i) the Partnership's
Certificate of Limited Partnership, as amended, (ii) the Third Amended and
Restated Agreement of Limited Partnership of the Partnership, (iii) the Plan,
(iv) the Registration Statement, (v) certain resolutions of the Board of
Directors of Ferrellgas, Inc., the general Partner of the Partnership, and (vi)
such other documents and records as we have deemed necessary and relevant for
purposes hereof. In addition, we have relied on certificates of officers of the
Partnership as to certain matters of fact relating to this opinion and have made
such investigations of law as we have deemed necessary and relevant as a basis
hereof. In such examination and investigation, we have assumed the genuineness
of all signatures, the authenticity of all documents, certificates and records
submitted to us as originals, the conformity to original documents, certificates
and records of all documents, certificates and records submitted to us as
copies, and the truthfulness of all statements of fact contained therein.
Based upon the foregoing and subject to the limitations and
assumptions set forth herein and having due regard for such legal considerations
as we deem relevant, we are of the opinion that the Units have been duly and
validly authorized and when issued and paid for in accordance with the terms of
the Plan will be validly issued, fully paid and nonassessable except as such
nonassessability may be affected by certain provisions of the Delaware Revised
Limited Partnership Act (the "Partnership Act").
The foregoing opinion is strictly limited to the matters stated
herein, and no other or more extensive opinion is intended or implied or to be
inferred beyond the matters expressly stated herein. The foregoing opinion is
based on and strictly limited to the Partnership Act, the Delaware Constitution
(the "Constitution"), the reported judicial decisions interpreting the
Partnership Act and the Constitution and the relevant law of the United States
of America, and we render no opinion with respect to the law of any other
jurisdiction. We hereby consent to the filing of this opinion with the
Commission as Exhibit 5.1 to the Registration Statement. By giving such consent,
we do not admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of
the Commission promulgated thereunder.
This opinion is rendered solely for your information in connection
with the transaction described above and may not be relied upon by you in any
other capacity or for any other purpose and may not be used or relied upon by
any other person or entity for any purpose without our express prior written
consent. Except for the use permitted herein, this opinion may not be quoted,
circulated or published, in whole or in part, otherwise referred to, filed with
or furnished to any other person or entity, without our express prior written
authorization. This opinion is not a guarantee or an opinion respecting matters
of fact and should not be construed or relied on as such. The opinions expressed
herein are as of the date hereof, and we undertake no responsibility to update
this opinion after the date hereof.
Very truly yours,
/s/ Mayer, Brown, Rowe & Maw
MAYER, BROWN, ROWE & MAW
Exhibit 23.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Ferrellgas Partners, L.P. on Form S-8 of our reports dated September 14, 2001,
appearing in the Annual Report on Form 10-K of Ferrellgas Partners, L.P. and
Ferrellgas Partners Finance Corp. for the year ended July 31, 2001, and of our
report dated September 21, 2001, related to Ferrellgas, Inc. and subsidiaries
appearing in the Current Report on Form 8-K of Ferrellgas Partners, L.P. and
Ferrellgas Partners Finance Corp. as filed with the Securities and Exchange
Commission on December 12, 2001.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Kansas City, Missouri
March 15, 2002