Exhibit 4.6
THE SECURITIES SUBJECT TO THIS AGREEMENT
HAVE NOT BEEN
REGISTERED
UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE OFFERED,
SOLD OR TRANSFERRED BY THE PURCHASER
THEREOF, UNLESS SOLD OR OTHERWISE TRANSFERRED IN COMPLIANCE WITH THIS UNIT
PURCHASE AGREEMENT, THE LIMITED PARTNERSHIP
AGREEMENT OF
FERRELLGAS
PARTNERS,
L.P. AS IN EFFECT AT THE TIME OF SALE OR
TRANSFER AND (I) SUCH
SECURITIES HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT AND ALL
APPLICABLE STATE
SECURITIES
LAWS OR (II) AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND A LEGAL
OPINION STATING THAT SUCH EXEMPTION IS AVAILABLE HAS BEEN SUBMITTED TO
FERRELLGAS PARTNERS, L.P. BY COUNSEL TO THE HOLDER OF
SUCH SECURITIES, IN
FORM
AND SUBSTANCE ACCEPTABLE TO FERRELLGAS
PARTNERS, L.P. IN ITS SOLE DISCRETION.
Unit Purchase Agreement
This Unit
Purchase Agreement (this "Agreement") is entered into as of
February 8, 2004, between Ferrellgas Partners, L.P., a Delaware limited
partnership (the "Partnership"),
and the stockholder of
Blue Rhino Corporation,
a Delaware corporation (the "Company") listed on Schedule I hereto
("Purchaser").
W I T N E S S E T H:
WHEREAS,
pursuant to that
particular Agreement and Plan of Merger made and
entered into as of the date hereof (the
"Merger Agreement"),
by and among FCI
Trading Corp., Diesel Acquisition LLC ("Merger
Sub"), Ferrell
Companies, Inc.
and the Company, it is contemplated that the Merger Sub will merge into the
Company, with the Company being the
surviving entity (the "Merger"); and
WHEREAS,
upon, and subject to, the closing of the Merger and
particular
other events related thereto and as further
described in the
Merger Agreement
(the "Effective Date"), Purchaser desires to purchase, and the Partnership
desires to sell, that aggregate dollar amount of common units of the
Partnership, representing limited partner
interests in the Partnership ("Common
Units"), set forth across from the name of
Purchaser on Schedule I hereto.
NOW,
THEREFORE,
in consideration of the foregoing and the respective
representations, warranties, mutual covenants and agreements
herein contained
and intending to be legally bound hereby,
the Partnership and
Purchaser hereby
agree as follows:
1. Purchase of Units.
(a) On the
Effective Date and subject to the terms and conditions set
forth
herein, the Partnership shall, based upon
the purchase price per Common Unit as
determined in accordance with Section 2
below, sell to Purchaser, and Purchaser
shall purchase from the Partnership, that aggregate dollar amount of Common
Units set forth across from Purchaser's
name on Schedule I hereto (the "Purchase
Price").
<PAGE>
(b) Prior to the Stockholders' Meeting (as defined in the Merger
Agreement), Purchaser shall deliver to the Paying Agent (as defined in the
Merger Agreement), a letter of transmittal
and letter of direction, each in form
and substance satisfactory to the Partnership in its sole discretion. Such
letters shall direct the Paying Agent, upon its receipt of the Merger
Consideration (as defined in the Merger
Agreement) to pay to the Partnership the
applicable Purchase Price out of escrow,
as detailed in the
Merger Agreement,
and to pay to the applicable Purchaser any remaining funds to which such
Purchaser is entitled pursuant to the terms
of the Merger Agreement.
(c) Upon the
Partnership's
receipt of the
Purchase Price from
the Paying
Agent, the Partnership shall cause the transfer agent for
the Common Units to
deliver to Purchaser a certificate
evidencing and
representing
that number of
Common Units purchased from the Partnership
by Purchaser. No
fractional Common
Units shall be issued to Purchaser
hereunder, but the
number of Common Units to
be issued pursuant to this Agreement shall be rounded up to the nearest
whole
number, in lieu of issuing the fraction of
a Common Unit
otherwise called
for
upon payment of the Purchase Price.
(d) Purchase
Price. The purchase
price for each Common Unit sold hereunder
shall be equal to the net proceeds (meaning the public offering price of the
Common Units less underwriting discounts and commissions but
before expenses of
the Partnership) to the Partnership per Common Unit sold
in the
Partnership's
anticipated public underwritten
offering of Common
Units in connection with the
Merger.
(e) Termination.
This Agreement shall terminate upon the termination of the
Merger Agreement.
2. Representations and Warranties of
Purchaser. Purchaser
hereby represents and
warrants to the Partnership that the following representations are true and
correct as of the date hereof, and shall be true and correct at and as of the
Effective Date as though such representations and warranties were made at
such
time:
(a) Purchaser is
an "accredited
investor" (as such term is defined in Rule
501 of Regulation D under the Securities
Act, the text of which
is set forth on
Schedule II hereto).
(b) Purchaser is (i) a citizen of the United States and is at least 21
years of age or (ii) a corporation or other legal entity formed and duly
organized under the laws of the United
States or a state thereof, and that the
offer to purchase Common Units hereunder was made by the Partnership and
accepted by Purchaser within the United
States;
(c) Purchaser has full power and authority to execute and deliver
this
Agreement, to perform its obligations hereunder and that such actions by
Purchaser, if applicable, have been duly authorized by all requisite
action,
corporate, partnership or otherwise;
(d) this
Agreement and all other documents required of Purchaser to
complete the purchase of the Common Units
hereunder have been
duly executed and
delivered by Purchaser and constitute the
legal, valid and binding obligation of
Purchaser enforceable in accordance with
their respective terms;
(e) if Purchaser
is an individual,
Purchaser's payment to
the Partnership
for the Common Units to be purchased
hereunder is either
separate property or
community property over which Purchaser has the right of control or of
which
Purchaser has the sole right of
management;
-2-
<PAGE>
(f) if Purchaser
is a corporation,
trust, partnership or other or other
legal entity, Purchaser is not an "investment
company", as such term is defined
in ss.3(a) of the Investment Company Act of
1940, as amended, or an entity which
would be an "investment company" but for the exception provided for in
ss.3(c)(1) or ss.3(c)(7) of such act;
(g) the purchase
of the Common Units by
Purchaser is for
Purchaser's own
account, is for investment purposes only,
and is not being made with a view to,
nor for offer or sale in connection
with, the distribution
of such Common Units
and Purchaser is not participating, does not have a participation
in and does
not contemplate any participation in, such
a distribution or the underwriting of
any such distribution;
(h) Purchaser
has no present intention of selling or otherwise disposing of
the Common Units purchased hereunder in violation of (i) this
Agreement,
(ii)
the Fourth Amended and Restated Partnership
Agreement of the Partnership, dated
February 18, 2003, as such may be amended from time
to time subsequent
to the
date hereof (the "Partnership Agreement"), or (iii) the Securities Act or
any
other applicable Federal or state
securities laws;
(i) Purchaser is
aware that neither the Securities and Exchange Commission
(the "SEC") nor other Federal or state
securities
commission
or governmental
authority has approved or disapproved
of the Common Units,
made any finding
or
determination as to the fairness of an
investment in the
Partnership, nor
made
any recommendation or endorsement with
respect thereto, and
any representation
to the contrary is a criminal offense;
(j) Purchaser
confirms that it
understands
and has fully
considered and
reviewed for purposes of the purchase of
Common Units hereunder
all documents
filed with the SEC by the Partnership and its affiliates, all of which are
publicly available via EDGAR (all such
documents are
collectively referred
to
herein as the "Public Filings");
(k) Purchaser is able to bear the
economic risk of the
purchase of Common
Units hereunder and is able to bear its
investment in the
Partnership
for an
indefinite period of time;
(l) Purchaser
understands
that the Common Units
purchased hereunder
have
not been registered under the Securities
Act or the securities laws of any state
and, therefore, cannot be sold, transferred
or otherwise disposed of (other than
in accordance with the terms of the
Registration
Rights Agreement dated as of
the date hereof among the parties hereto)
unless:
(i) such Common Units are subsequently registered under the
Securities Act and any applicable securities laws of any state
or
exemptions from registration thereunder are available; and
(ii) such sale,
transfer or disposal is in compliance with the terms
of the Partnership Agreement and this Agreement;
Purchaser
further understands
that only the Partnership can take action to
register the
Common Units being sold hereunder and that the Partnership is
under no
obligation, and has no present plans, to do so;
-3-
<PAGE>
(m) Purchaser
understands
that (other than a
sale in accordance
with the
terms of the Registration Rights Agreement
dated as of the date hereof among the
parties hereto) the Common Units purchased
hereunder may be
required to be held
for an indeterminate period of time and that the sale
or other transfer of such
Common Units by Purchaser in reliance on
Rule 144 under the
Securities Act, if
available to Purchaser, may be made only in limited
amounts in accordance
with
the terms and conditions of Rule 144;
(n) In
addition to the other provisions of this Agreement and the
Partnership Agreement, Purchaser agrees that in no event
will Purchaser make a
sale, transfer or other disposition of any of the Common Units purchased
hereunder (other than in accordance with the
terms of the
Registration
Rights
Agreement dated as of the date hereof among the parties hereto) unless and
until:
(i) Purchaser
has notified the Partnership of its proposed
disposition and has furnished the Partnership with a statement
of
the circumstances surrounding the proposed disposition; and
(ii) Purchaser has
furnished the Partnership with an opinion of
counsel satisfactory to the Partnership in its sole discretion
to
the effect
(A) that such disposition will not require
registration or
qualification of such Common Units under federal
or state securities laws or (B) that appropriate action
necessary
for compliance
with such federal or
state securities
laws has
been taken;
provided,
however, the Partnership may expressly waive the
requirements
under clauses
(i) and (ii) above.
(o) all
information
that Purchaser has
supplied to the Partnership or its
respective representatives or agents,
including the information included in this
Agreement, is true and complete as of the
date hereof, and unless otherwise made
known to the Partnership or its
representatives in writing, true and complete as
of the Effective Date, with the same force and effect as
if executed, made,
or
supplied, at the Effective Date;
(p) Purchaser,
or its principles,
as the case may be,
acknowledges
that
they have such knowledge and experience in financial, investing and business
matters as to be capable of evaluating the
risks and merits of purchasing Common
Units pursuant to this Agreement and
protecting
their interests in connection
with such purchase of the Common Units hereunder and investment in the
Partnership;
(q) Purchaser
was not contacted by the Partnership or its representatives
for the purpose of purchasing the Common Units hereunder through any
advertisement, article, mass mailing, notice or any other communication
published in any newspaper, magazine, or similar media or broadcast over
television or radio, or any seminar or meeting whose
attendees were invited
by
any general advertising;
(r) Purchaser confirms that, in making the decision to purchase
Common
Units hereunder, Purchaser has relied solely upon
independent
investigations
made by Purchaser or representatives of Purchaser, including their own
professional tax and other advisers and
that Purchaser and such representatives
have had access to and an opportunity to inspect all relevant information
relating to the Partnership (including the Public Filings)
sufficient to enable
Purchaser to evaluate the merits and risks of their
purchase of Common
Units
hereunder;
-4-
<PAGE>
(s) Purchaser has had the opportunity to ask questions of the
representatives of the Partnership, including representatives of its general
partner, and has received satisfactory
answers respecting, and has obtained such
additional information as Purchaser has desired regarding the business,
financial condition and other affairs of
the Partnership;
(t) the
completion,
execution and delivery
by Purchaser of this Agreement
and all other documents required to complete the purchase of the Common
Units
hereunder and the performance by Purchaser
of its obligations
hereunder do not,
and will not, violate any provision of law, any order of any court or
other
agency of government, and do not and will not result in
a material breach of or
constitute (with due notice or lapse of time
or both) a material
default under
any provision of any indenture, agreement or other instrument to which
Purchaser, or any of its properties or
assets, is bound;
(u) Purchaser is not acquiring Common Units hereunder with a view to
realizing any benefits under the United States federal income tax laws with
respect to Purchaser's share of any losses or expenses of
the Partnership,
and
no representations have been made to Purchaser
that any such benefits
will be
available as result of Purchaser's
acquisition, ownership or disposition of such
Common Units;
(v) Purchaser
has not borrowed, and
shall not borrow, as
the case may be,
any portion of the funds necessary to purchase Common Units
hereunder,
either
directly or indirectly, from the Partnership, its general partner or any
affiliate of the foregoing;
(w) for United
States tax purposes:
(i) Purchaser
certifies that its
name, taxpayer
identification
or
social security
number and
address set forth on
Schedule I are
correct;
(ii) Purchaser
certifies that
it is not a non-resident alien
individual, foreign
corporation, foreign
partnership,
foreign
trust or foreign estate (as defined in the Internal Revenue Code
of 1986, as
amended) and that it will notify the Partnership
within sixty
