As filed with the Securities and Exchange Commission on June 23, 2003
Registration Nos. 333-87633 and 333-84344
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENTS
UNDER
THE SECURITIES ACT OF 1933
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Ferrellgas Partners, L.P.
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(Exact name of registrant as specified in its charter)
Delaware 43-1698480
- ------------------------------- -------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Liberty Plaza, Liberty, Missouri 64068
(816) 792-1600
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(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Second Amended and Restated Ferrellgas Unit Option Plan
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(Full Title of Plan)
Kevin T. Kelly
Senior Vice President and Chief Financial Officer
Ferrellgas, Inc.
One Liberty Plaza, Liberty, Missouri 64068
(816) 792-1600
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(Name, address, including zip code, and telephone number, including area code,
of registrant's agent for service)
Copies to:
David L. Ronn
Mayer, Brown, Rowe & Maw
700 Louisiana Street, Suite 3600
Houston, Texas 77002
(713) 546-0525
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EXPLANATORY NOTE
On September 23, 1999, the registrant filed a registration statement on
Form S-8 (Registration No. 333-87633) covering the issuance of up to 850,000
common units under the Amended and Restated Ferrellgas Unit Option Plan. On
March 15, 2002, upon amending and restating that plan, the registrant filed a
registration statement on Form S-8 (Registration No. 333-84344) covering the
issuance of up to an additional 500,000 common units under the Second Amended
and Restated Ferrellgas Unit Option Plan. This post-effective amendment No. 1 to
both of those registration statements is filed for the sole purpose of filing a
reoffer prospectus covering reoffers and resales of such common units by
affiliates of the registrant pursuant to General Instruction C.1(a) to Form S-8.
There are currently 1,011,400 options to purchase common units either
outstanding or eligible for issuance under the Unit Option Plan.
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 SEC either as part of the
registration statements or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act. These documents, the reoffer prospectus
below, the documents incorporated by reference pursuant to Item 3 of Part II of
the registration statements and any information contained in an applicable
prospectus supplement, taken together, constitute the prospectus as required by
Section 10(a) of the Act.
CONTROL SECURITIES REOFFER PROSPECTUS
The material which follows constitutes a prospectus prepared in accordance
with the applicable requirements of Part I of Form S-3 and General Instruction C
to Form S-8, to be used in connection with reoffers and resales of control
securities acquired under the Unit Option Plan.
PROSPECTUS
1,011,400 Common Units
Ferrellgas Partners, L.P.
We are the second largest retail marketer of propane in the United States
based on retail gallons sold during our fiscal year 2002, representing what we
believe to be approximately 11% of the retail propane gallons sold in the United
States.
The selling unitholders named in this prospectus (or in a supplement to
this prospectus), and any of their pledgees, donees, transferees or other
successors in interest, may offer to sell up to an aggregate of 1,011,400 of our
common units. On the date of this prospectus, the selling unitholders own some
but not all of such common units, and they may acquire more of such common units
pursuant to our Second Amended and Restated Ferrellgas Unit Option Plan. We will
not receive any of the proceeds from the sale of any of these common units by
such selling unitholders, other than any payment of the exercise price for the
issuance of such common units under the Unit Option Plan, but we agreed to bear
the expenses of registering such common units. Our registration of these common
units does not necessarily imply that all or any portion of such common units
will be offered for sale by the selling unitholders.
Our common units are traded on the New York Stock Exchange under the symbol
"FGP."
The selling unitholders may sell their common units by means of this
prospectus and any applicable prospectus supplement or they may decide to sell
them by other means, including pursuant to Rule 144; however they are not
obligated to sell their common units at all. The selling unitholders may sell
their common units from time to time in one or more types of transactions (which
may include block transactions) on the New York Stock Exchange, in the
over-the-counter market, in negotiated transactions, through put or call option
transactions relating to the common units, through short sales of common units,
or a combination of such methods of sale, at market prices prevailing at the
time of sale, at prices related to such market prices, at negotiated prices, or
at fixed prices. The selling unitholders may sell their common units directly to
purchasers or through agents, underwriters or broker-dealers. If required by
law, the names of any such agents and underwriters involved in the sale and the
applicable agent's commission, dealer's purchase price or underwriter's
discount, if any, will be set forth in a supplement accompanying this
prospectus. The selling unitholders will pay any applicable underwriting
discounts, selling commissions and transfer taxes. We will pay all other
expenses incident to the registration of the common units. The selling
unitholders and any broker-dealers, agents or underwriters that participate in
the distribution of the common units may be deemed to be "underwriters" within
the meaning of the Securities Act of 1933, and any commission received by them
and any profit on the resale of the common units purchased by them may be deemed
to be underwriting commissions or discounts under the Securities Act.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is June 23, 2003.
Table of Contents
The Company................................................................. 2
Use of Proceeds............................................................. 2
Selling Unitholders......................................................... 2
Plan of Distribution........................................................ 2
Where You Can Find More Information......................................... 3
Legal Matters............................................................... 5
Experts..................................................................... 5
Forward-Looking Statements.................................................. 5
THE COMPANY
We are the second largest retail marketer of propane in the United States
based on retail gallons sold during our fiscal year 2002, representing what we
believe to be approximately 11% of the retail propane gallons sold in the United
States. As of April 30, 2003, we had 593 retail outlets serving more than 1
million residential, industrial/commercial and agricultural and other customers
in 45 states. Our operations primarily include the retail distribution and sale
of propane and related equipment and supplies and extend from coast to coast
with concentrations in the Midwest, Southeast, Southwest and Northwest regions
of the country.
USE OF PROCEEDS
We will not receive any proceeds from any sales by any selling unitholder
of common units covered by this prospectus, other than any payment of the
exercise price for the issuance of such common units under the Unit Option Plan.
SELLING UNITHOLDERS
Pursuant to General Instruction C.3(a)(1) of Form S-8, we will name the
selling unitholders in a supplement to this prospectus which will be filed with
the SEC prior to any registered resales by such persons. An "affiliate" is
defined by SEC Rule 405 as a "person that, directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with" us.
PLAN OF DISTRIBUTION
We have been advised that the selling unitholders, and/or their donees,
pledgees, transferees or other successors in interest, may effect sales of our
common units directly, or indirectly by or through underwriters, agents or
broker-dealers, and that such common units may be sold by one or a combination
of several of the following methods:
o ordinary brokerage transactions;
o an underwritten public offering in which one or more underwriters
participate;
o purchases by a broker-dealer as principal and resale by that
broker-dealer for its own account;
o in "block" sale transactions; and
o in privately negotiated transactions.
Our common units will be sold at prices and on terms then prevailing in the
market, at prices related to the then-current market price of the common units,
or at negotiated prices. At the time that a particular offer is made, a
prospectus supplement, if required, will be distributed that describes the name
or names of underwriters, agents or broker-dealers, any discounts, commissions
and other terms constituting selling compensation and any other required
information. Moreover, in effecting sales, broker-dealers engaged by any selling
unitholder and/or the purchasers of the common units may arrange for other
broker-dealers to participate in the sale process. Broker-dealers will receive
discounts or commissions from the applicable selling unitholder and/or the
purchasers of the common units in amounts that be negotiated prior to the time
of sale. Sales will be made only through broker-dealers properly registered in a
subject jurisdiction or in transactions exempt from registration. Any of these
underwriters, broker-dealers or agents may perform services for us or our
affiliates in the ordinary course of business.
2
The applicable selling unitholder also may resell all or a portion of the
common units in open market transactions in reliance upon Rule 144 of the
Securities Act rather than pursuant to this prospectus, provided that they meet
the criteria and conform to the requirements of such rule.
When common units are to be sold to underwriters, unless otherwise
described in the applicable prospectus supplement, the obligations of the
underwriters to purchase the common units will be subject to conditions
precedent but the underwriters will be obligated to purchase all of the common
units if any are purchased. The common units will be acquired by the
underwriters for their own account and may be resold by the underwriters, either
directly to the public or to securities dealers, from time to time in one or
more transactions, including negotiated transactions. These sales can occur
either at fixed public offering prices or at varying prices determined at the
time of sale. The initial public offering price, if any, and any concessions
allowed or reallowed to dealers, may be changed from time to time. Those
underwriters may be entitled, under agreements with us, to indemnification from
us against certain civil liabilities, including liabilities under the Securities
Act, or to contribution by us to payments that they may be required to make in
respect of those civil liabilities.
Any broker or dealer participating in any distribution of common units in
connection with the offering made by this prospectus may be deemed to be an
"underwriter" within the meaning of the Securities Act and may be required to
deliver a copy of this prospectus, including a prospectus supplement, if
required, to any person who purchases any of the common units from or through
that broker or dealer.
We have agreed to pay for the costs of registering the common units under
the Securities Act, including the registration fee under the Securities Act,
reasonable fees and disbursements of our counsel, accounting fees and printing
fees. The applicable selling unitholder will bear all other expenses in
connection with this offering, including brokerage commissions.
WHERE YOU CAN FIND MORE INFORMATION
Where Documents are Filed; Copies of Documents
We file annual, quarterly and other reports and other information with the
SEC. You may read and download our SEC filings over the Internet from several
commercial document retrieval services as well as at the SEC's website at
http://www.sec.gov. You may also read and copy our SEC filings at the SEC's
public reference room located at Judiciary Plaza, 450 5th Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information concerning the public reference room and any applicable copy
charges.
Because our common units are traded on the New York Stock Exchange, we also
provide our SEC filings and particular other information to the New York Stock
Exchange. You may obtain copies of these filings and this other information at
the offices of the New York Stock Exchange located at 11 Wall Street, New York,
New York 10005.
In addition, you may also access further information about us by visiting
our website at http://www.ferrellgas.com. Please note that the information and
materials found on our website, except to the extent expressly described below,
are not part of this prospectus and are not incorporated by reference into this
prospectus.
Incorporation of Documents by Reference
We filed with the SEC registration statements on Form S-8 (Registration
Nos. 333-8763 and 333-84344) with respect to the securities offered by this
prospectus. This prospectus is a part of those registration statements. As
allowed by the SEC, this prospectus does not contain all of the information you
can find in the registration statements or the exhibits to the registration
statements. Instead, the SEC allows us to incorporate by reference information
into this prospectus. Incorporation by reference means that we can disclose
particular important information to you without actually including such
information in this prospectus by simply referring you to another document that
we filed separately with the SEC.
The information we incorporate by reference is an important part of this
prospectus and should be carefully read in conjunction with this prospectus and
any prospectus supplement. Information that we file with the SEC after the date
of this prospectus will automatically update and may supersede some of the
information in this prospectus as well as information we previously filed with
the SEC and that was incorporated by reference into this prospectus.
3
The following documents are incorporated by reference into this prospectus:
o The Annual Report on Form 10-K of Ferrellgas Partners and Ferrellgas
Partners Finance Corp. for the fiscal year ended July 31, 2002,
excluding Items 6, 7, 8 and 15 thereof, as filed with the SEC on
October 23, 2002, as amended by Amendment No. 1 to Form 10-K/A as
filed with the SEC on December 10, 2002, as amended by Amendment No. 2
to Form 10-K/A, including Items 6, 7, 8 and 15 thereof, as filed with
the SEC on June 6, 2003;
o the Quarterly Report on Form 10-Q of Ferrellgas Partners and
Ferrellgas Partners Finance Corp. for the quarterly period ended
October 31, 2002, as filed with the SEC on December 11, 2002;
o the Quarterly Report on Form 10-Q of Ferrellgas Partners and
Ferrellgas Partners Finance Corp. for the quarterly period ended
January 31, 2003, excluding Items 1, 2 and 6 thereof, as filed with
the SEC on March 12, 2003, as amended on Form 10-Q/A, including Items
1, 2 and 6 thereof as filed with the SEC on June 6, 2003;
o the Quarterly Report on Form 10-Q of Ferrellgas Partners, Ferrellgas
Partners Finance Corp., Ferrellgas, L.P. and Ferrellgas Finance Corp.
for the quarterly period ended April 30, 2003 as filed with the SEC on
June 13, 2003;
o the Current Report on Form 8-K of Ferrellgas Partners and Ferrellgas
Partners Finance Corp., as furnished to the SEC on September 13, 2002;
o the Current Report on Form 8-K of Ferrellgas Partners and Ferrellgas
Partners Finance Corp., as filed with the SEC on September 24, 2002;
o the Current Report on Form 8-K of Ferrellgas Partners and Ferrellgas
Partners Finance Corp., as furnished to the SEC on November 19, 2002;
o the Current Report on Form 8-K of Ferrellgas Partners and Ferrellgas
Partners Finance Corp., as filed with the SEC on February 3, 2003;
o the Current Report on Form 8-K of Ferrellgas Partners and Ferrellgas
Partners Finance Corp., as filed with the SEC on February 18, 2003;
o the Current Report on Form 8-K of Ferrellgas Partners and Ferrellgas
Partners Finance Corp., as furnished to the SEC on February 19, 2003;
o the Current Report on Form 8-K of Ferrellgas Partners and Ferrellgas
Partners Finance Corp., as filed with the SEC on May 6, 2003;
o the Current Report on Form 8-K of Ferrellgas Partners and Ferrellgas
Partners Finance Corp., as furnished to the SEC on May 21, 2003;
o the Current Report on Form 8-K of Ferrellgas Partners and Ferrellgas
Partners Finance Corp., as furnished to the SEC on May 29, 2003;
o the description of Ferrellgas Partners' common units in its
registration statement on Form 8-A/A as filed with the SEC on February
18, 2003, and any amendments or reports filed to update the
description; and
o all documents that we file under Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this prospectus and until the
earlier of the termination of the registration statement to which this
prospectus relates or until we sell all of the securities offered by
this prospectus.
If information in any of these incorporated documents conflicts with
information in this prospectus or any prospectus supplement you should rely on
the most recent information. If information in an incorporated document
conflicts with information in another incorporated document, you should rely on
the information in the most recent incorporated document.
4
You may request from us a copy of any document we incorporate by reference
at no cost, excluding all exhibits to such incorporated documents unless we have
specifically incorporated by reference such exhibits either in this prospectus
or in the incorporated document, by making such a request in writing or by
telephone to the following address:
Ferrellgas, Inc.
One Liberty Plaza
Liberty, Missouri 64068
Attention: Investor Relations
(816) 792-0203
LEGAL MATTERS
Particular legal matters related to the securities described in this
prospectus have been and/or will be passed upon for us by Blackwell Sanders
Peper Martin LLP and Mayer, Brown, Rowe & Maw, including the validity of the
securities described in the prospectus. If legal matters in connection with any
offering of any of the securities described in this prospectus and the
applicable prospectus supplement are passed on by counsel for any underwriters
or dealers of such offering, that counsel will be named in the applicable
prospectus supplement.
EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this prospectus by reference from Ferrellgas Partners,
L.P.'s and Ferrellgas Partners Finance Corp.'s Amendment No. 2 to their Annual
Report on Form 10-K/A for the fiscal year ended July 31, 2002, have been audited
by Deloitte & Touche LLP, independent auditors, as stated in their reports dated
September 12, 2002, May 29, 2003 as to Notes E and R of Ferrellgas Partners,
L.P. (which report relating to Ferrellgas Partners, L.P. expresses an
unqualified opinion and includes two explanatory paragraphs relating to a change
in accounting principle and to the restatement described in Note R), which are
incorporated herein by reference, and have been so incorporated in reliance upon
the reports of such firm given upon their authority as experts in accounting and
auditing.
The consolidated balance sheet of Ferrellgas, Inc. and Subsidiaries as of
July 31, 2002, filed as exhibit 99.15 to Ferrellgas Partners, L.P.'s and
Ferrellgas Partners Finance Corp.'s Quarterly Report on Form 10-Q for the
quarterly period ended October 31, 2002 has been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report relating to Ferrellgas,
Inc. and Subsidiaries dated September 12, 2002 (which report expresses an
unqualified opinion and includes an explanatory paragraph relating to a change
in accounting principle), which is incorporated herein by reference, and has
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents we have incorporated by reference include
forward-looking statements. These forward-looking statements are identified as
any statement that does not relate strictly to historical or current facts. They
often use or are preceded by words such as "anticipate," "believe," "intend,"
"plan," "projection," "forecast," "strategy," "position," "continue,"
"estimate," "expect," "may," "will," or the negative of those terms or other
variations of them or comparable terminology. These statements often discuss
plans, strategies, events or developments that we expect or anticipate will or
may occur in the future and are based upon the beliefs and assumptions of our
management and on the information currently available to them. In particular,
statements, express or implied, concerning our future operating results or our
ability to generate sales, income or cash flow are forward-looking statements.
Forward-looking statements are not guarantees of future performance. You
should not put undue reliance on any forward-looking statements. All
forward-looking statements are subject to risks, uncertainties and assumptions
that could cause our actual results to differ materially from those expressed in
or implied by these forward-looking statements. Many of the factors that will
affect our future results are beyond our ability to control or predict.
Some of our forward-looking statements include the following:
o whether our operating partnership will have sufficient funds to meet
its obligations, including its obligations under its debt securities
issued under this prospectus and any applicable prospectus supplement,
and to enable it to distribute to us sufficient funds to permit us to
meet our obligations with respect to our existing securities and the
securities issued under this prospectus and any applicable prospectus
supplement;
o whether we and our operating partnership will continue to meet all of
the quarterly financial tests required by the agreements governing
their indebtedness; and
o the expectation that future periods may not have the same percentage
decrease in retail volumes, revenues and expenses as was experienced
for the twelve months ended July 31, 2002.
5
For a more detailed description of these particular forward-looking
statements and for other factors that may affect any forward-looking statements,
see the section entitled "Management's Discussion and Analysis of Financial
Condition and Results of Operations" in Item 7 of our most recently filed Annual
Report on Form 10-K or Form 10-K/A, as applicable, and in Item 2 of our most
recently filed Quarterly Report on Form 10-Q, both as incorporated herein by
reference. See "Where You Can Find More Information."
When considering any forward-looking statement, you should also keep in
mind the risk factors described in the documents we have incorporated herein by
reference and an applicable prospectus supplement. Except for our ongoing
obligations to disclose material information as required by federal securities
laws, we undertake no obligation to update any forward-looking statements after
we distribute this prospectus and any applicable prospectus supplement.
In addition, our classification and that of our operating partnership as
partnerships for federal income tax purposes means that we do not generally pay
federal income taxes. We do, however, pay taxes on the income of our
subsidiaries that are corporations. We rely on a legal opinion from our counsel,
and not a ruling from the Internal Revenue Service, as to our proper
classification for federal income tax purposes.
6
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENTS
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference herein and shall be deemed
to be a part hereof:
o The Annual Report on Form 10-K of Ferrellgas Partners and
Ferrellgas Partners Finance Corp. for the fiscal year ended July
31, 2002, excluding Items 6, 7, 8 and 15 thereof, as filed with
the SEC on October 23, 2002, as amended by Amendment No. 1 to
Form 10-K/A as filed with the SEC on December 10, 2002, as
amended by Amendment No. 2 to Form 10-K/A, including Items 6, 7,
8 and 15 thereof, as filed with the SEC on June 6, 2003;
o the Quarterly Report on Form 10-Q of Ferrellgas Partners and
Ferrellgas Partners Finance Corp. for the quarterly period ended
October 31, 2002, as filed with the SEC on December 11, 2002;
o the Quarterly Report on Form 10-Q of Ferrellgas Partners and
Ferrellgas Partners Finance Corp. for the quarterly period ended
January 31, 2003, excluding Items 1, 2 and 6 thereof, as filed
with the SEC on March 12, 2003, as amended on Form 10-Q/A,
including Items 1, 2 and 6 thereof as filed with the SEC on June
6, 2003;
o the Quarterly Report on Form 10-Q of Ferrellgas Partners,
Ferrellgas Partners Finance Corp., Ferrellgas, L.P. and
Ferrellgas Finance Corp. for the quarterly period ended April 30,
2003 as filed with the SEC on June 13, 2003;
o the Current Report on Form 8-K of Ferrellgas Partners and
Ferrellgas Partners Finance Corp., as furnished to the SEC on
September 13, 2002;
o the Current Report on Form 8-K of Ferrellgas Partners and
Ferrellgas Partners Finance Corp., as filed with the SEC on
September 24, 2002;
o the Current Report on Form 8-K of Ferrellgas Partners and
Ferrellgas Partners Finance Corp., as furnished to the SEC on
November 19, 2002;
o the Current Report on Form 8-K of Ferrellgas Partners and
Ferrellgas Partners Finance Corp., as filed with the SEC on
February 3, 2003;
o the Current Report on Form 8-K of Ferrellgas Partners and
Ferrellgas Partners Finance Corp., as filed with the SEC on
February 18, 2003;
o the Current Report on Form 8-K of Ferrellgas Partners and
Ferrellgas Partners Finance Corp., as furnished to the SEC on
February 19, 2003;
o the Current Report on Form 8-K of Ferrellgas Partners and
Ferrellgas Partners Finance Corp., as filed with the SEC on May
6, 2003;
o the Current Report on Form 8-K of Ferrellgas Partners and
Ferrellgas Partners Finance Corp., as furnished to the SEC on May
21, 2003;
o the Current Report on Form 8-K of Ferrellgas Partners and
Ferrellgas Partners Finance Corp., as furnished to the SEC on May
29, 2003;
o the description of Ferrellgas Partners' common units in its
registration statement on Form 8-A/A as filed with the SEC on
February 18, 2003, and any amendments or reports filed to update
the description; and
o all documents that we file under Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this prospectus and
until the earlier of the termination of the registration
statement to which this prospectus relates or until we sell all
of the securities offered by this prospectus.
If information in any of these incorporated documents conflicts with
information in this prospectus or any prospectus supplement you should rely on
the most recent information. If information in an incorporated document
conflicts with information in another incorporated document, you should rely on
the information in the most recent incorporated document.
II-1
You may request from us a copy of any document we incorporate by reference
at no cost, excluding all exhibits to such incorporated documents unless we have
specifically incorporated by reference such exhibits either in this prospectus
or in the incorporated document, by making such a request in writing or by
telephone to the following address:
Ferrellgas, Inc.
One Liberty Plaza
Liberty, Missouri 64068
Attention: Investor Relations
(816) 792-0203
Item 6. Indemnification of Directors and Officers
Ferrellgas Partners, L.P. and Ferrellgas, L.P.
Ferrellgas Partners, L.P. and its operating partnership, Ferrellgas, L.P.,
have no employees, officers or directors. Each is managed and operated by the
employees, officers and directors of its general partner, Ferrellgas, Inc.
The partnership agreements of Ferrellgas Partners, L.P. and Ferrellgas,
L.P. provide that Ferrellgas Partners, L.P. and Ferrellgas, L.P., 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)
particular 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:
o the general partner, a former general partner, or any of their
affiliates;
o an officer, director, employee, partner, agent or trustee of
either partnership, the general partner, any former general
partner, or any of their affiliates; or
o a person or entity serving at the request of either partnership
in another entity in a similar capacity.
This indemnification 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 our 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 either 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.
We have, to the extent commercially reasonable, purchased and currently
maintain (or reimburse our general partner or its affiliates for the cost of)
insurance, on behalf of our general partner and such other persons or entities
as our general partner has determined, including particular other Indemnitees,
against any liability that may be asserted against or expenses that may be
incurred by such person or entity in connection with either partnership's
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 Ferrellgas Partners, L.P. or Ferrellgas, L.P. would have
the power to indemnify such person or entity against such liability under the
provisions of either partnerships' applicable partnership agreement.
II-2
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 partnership interests in Ferrellgas
Partners, L.P., for losses sustained or liabilities incurred as a result of any
act or omission if such Indemnitee acted in good faith. Also, our general
partner shall not be responsible for any misconduct or negligence on the part of
any agent appointed by our general partner in good faith to exercise any of the
powers granted to our general partner or to perform any of the duties imposed
upon it pursuant to the applicable partnership agreement.
Ferrellgas, Inc.
The Certificate of Incorporation, as amended, and bylaws of Ferrellgas,
Inc. 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 Ferrellgas, Inc. 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 Ferrellgas, Inc.
and, with respect to any criminal proceeding, had no reasonable cause to believe
its conduct was unlawful. Ferrellgas, Inc. is also under similar obligations to
advance expenses to its officers and directors relating to indemnified claims
and Ferrellgas, Inc. has, to the extent commercially reasonable, purchased and
currently maintains insurance on behalf of its officers and directors.
Furthermore, the directors of Ferrellgas, Inc. are not personally liable to
Ferrellgas, Inc. or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability:
o for any breach of the director's duty of loyalty to Ferrellgas, Inc.
or its stockholders,
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o for unlawful payments of dividends or unlawful stock repurchases or
redemptions under Section 174 of the General Corporation Law of the
State of Delaware; or
o for any transaction from which the director derived an improper
personal benefit.
Ferrellgas, Inc. has also entered into employment agreements with some of
its directors and officers. Pursuant to these employment agreements, Ferrellgas,
Inc. 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 Ferrellgas, Inc.
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 Ferrellgas, Inc. to procure a judgment in its favor
by reason of the fact that such director or officer is or was a director or
officer of Ferrellgas, Inc., or is or was serving at the request of Ferrellgas,
Inc. 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
Ferrellgas, Inc. 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 Ferrellgas,
Inc. 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 Ferrellgas, Inc. 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:
o by a majority vote of the board of directors of Ferrellgas, Inc. who
are not parties to such action, suit or proceeding, even though less
than a quorum;
II-3
o if there are no such directors or, if such directors so direct, by
independent legal counsel in a written opinion; or
o by the stockholders of Ferrellgas, Inc.
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 Ferrellgas, Inc. 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, unitholders 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 Ferrellgas, Inc. and as to action in another capacity while
holding such office, and shall continue after the Indemnitee, or other
applicable person, has ceased to be an officer or director of either partnership
or Ferrellgas, Inc., and shall inure to the benefit of the heirs, executors and
administrators of the Indemnitee, or other applicable person.
Item 8. Exhibits
Number Description
------ -----------
4.1 Fourth Amended and Restated Agreement of Limited
Partnership of Ferrellgas Partners, L.P. dated as of
February 18, 2003. Incorporated by reference to Exhibit
4.3 to the Current Report on Form 8-K of Ferrellgas
Partners, L.P. filed February 18, 2003.
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
June 5, 2001.
4.3 Form of Certificate Evidencing Common Units.
Incorporated by reference to Exhibit A to the Fourth
Amended and Restated Agreement of Limited Partnership of
Ferrellgas Partners. L.P. Incorporated by reference to
Exhibit 4.3 to the Current Report on Form 8-K of
Ferrellgas Partners, L.P. filed February 18, 2003.
5.1 Opinion of Mayer, Brown, Rowe & Maw as to the legality
of 500,000 of the common units of Ferrellgas Partners,
L.P. registered under the registration statement on
Form S-8 (Registration No. 333-84344) filed on
March 15, 2002. Previously filed as Exhibit 5.1 to that
registration statement.
5.2 Opinion of Blackwell Sanders Peper Martin LLP as to
the legality of 850,000 of the common units of
Ferrellgas Partners, L.P. registered under the
registration statement on Form S-8 (Registration No.
333-87633) filed on September 29, 1999. Previously
filed as Exhibit 5.1 to that registration statement.
23.1 Consent of Mayer, Brown, Rowe & Maw (contained in
Exhibit 5.1 herewith).
23.2 Consent of Blackwell Sanders Peper Martin LLP (contained
in Exhibit 5.2 herewith).
* 23.3 Consent of Deloitte & Touche LLP.
-----------------
* filed herewith
II-4
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 Post-Effective Amendment No. 1 to Registration
Statements on Form S-8 and has duly caused this Post-Effective Amendment No. 1
to Registration Statements on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Liberty, State of
Missouri, on June 23, 2003.
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, Post-Effective
Amendment No. 1 to Registration Statements on Form S-8 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 June 23, 2003
- ------------------------------- of Ferrellgas, Inc. (Principal Executive Officer)
James E. Ferrell
/s/ William K. Hoskins Director of Ferrellgas, Inc. June 23, 2003
- -------------------------------
William K. Hoskins
/s/ A. Andrew Levison Director of Ferrellgas, Inc. June 23, 2003
- -------------------------------
A. Andrew Levison
/s/ John R. Lowden Director of Ferrellgas, Inc. June 23, 2003
- -------------------------------
John R. Lowden
/s/ Michael F. Morrissey Director of Ferrellgas, Inc. June 23, 2003
- -------------------------------
Michael F. Morrissey
/s/ Elizabeth T. Solberg Director of Ferrellgas, Inc. June 23, 2003
- -------------------------------
Elizabeth T. Solberg
/s/ Kevin T. Kelly Senior Vice President and Chief Financial Officer June 23, 2003
- ------------------------------- of Ferrellgas, Inc. (Principal Financial and
Kevin T. Kelly Accounting Officer)
Exhibit Index
Number Description
------ -----------
4.1 Fourth Amended and Restated Agreement of Limited
Partnership of Ferrellgas Partners, L.P. dated as of
February 18, 2003. Incorporated by reference to Exhibit
4.3 to the Current Report on Form 8-K of
Ferrellgas Partners, L.P. filed February 18, 2003.
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 June 5,
2001.
4.3 Form of Certificate Evidencing Common Units.
Incorporated by reference to Exhibit A to the Fourth
Amended and Restated Agreement of Limited Partnership of
Ferrellgas Partners. L.P. Incorporated by reference to
Exhibit 4.3 to the Current Report on Form 8-K of
Ferrellgas Partners, L.P. filed February 18, 2003.
5.1 Opinion of Mayer, Brown, Rowe & Maw as to the legality
of 500,000 0f the common units of Ferrellgas
Partners, L.P. registered under the registration
statement on Form S-8 (Registration No. 333-84344) filed
on March 15, 2002. Previously filed as Exhibit 5.1 to
that registration statement.
5.2 Opinion of Blackwell Sanders Peper Martin LLP as to the
legality of 850,000 of the common units of Ferrellgas
Partners, L.P. registered under the registration
statement on Form S-8 (Registration No. 333-87633)
filed on September 29, 1999. Previously filed as
Exhibit 5.1 to that registration statement.
23.1 Consent of Mayer, Brown, Rowe & Maw (contained in
Exhibit 5.1 herewith).
23.2 Consent of Blackwell Sanders Peper Martin LLP (contained
in Exhibit 5.2 herewith).
* 23.3 Consent of Deloitte & Touche LLP.
-----------------
* filed herewith
Exhibit 23.3
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Post-Effective
Amendment No. 1 to Registration Statements on Form S-8 of Ferrellgas Partners,
L.P. of:
o our reports dated September 12, 2002, May 29, 2003 as to Notes E and R
of Ferrellgas Partners, L.P. (which report relating to Ferrellgas
Partners, L.P. expresses an unqualified opinion and includes two
explanatory paragraphs relating to a change in accounting principle
and to the restatement described in Note R) appearing in Amendment No.
2 to the Annual Report on Form 10-K/A of Ferrellgas Partners, L.P. and
Ferrellgas Partners Finance Corp. for the year ended July 31, 2002;
and
o our report relating to Ferrellgas, Inc. and Subsidiaries dated
September 12, 2002, (which report expresses an unqualified opinion and
includes an explanatory paragraph relating to a change in accounting
principle) appearing in Exhibit 99.15 to the Quarterly Report on Form
10-Q of Ferrellgas Partners, L.P. and Ferrellgas Partners Finance
Corp. for the three-months ended October 31, 2002.
We also consent to the reference to us under the heading "Experts" in the
prospectus that is a part of this registration statement.
DELOITTE & TOUCHE LLP
Kansas City, Missouri
June 20, 2003