CALUMET SPECIALTY PRODUCTS PARTNERS, L.P. __________ COMMON UNITS REPRESENTING LIMITED PARTNER INTERESTS Common Unit Purchase Agreement
EXHIBIT 1.2
__________ COMMON UNITS
REPRESENTING LIMITED PARTNER INTERESTS
January [_], 2006
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Ladies and Gentlemen:
Calumet Specialty Products Partners, L.P., a Delaware limited partnership (the “Partnership”
or the “MLP”), proposes, subject to the terms and conditions stated herein, to issue and sell to
the investors named in Schedule I hereto (the “▇▇▇▇▇▇▇▇▇▇ Investors”) an aggregate of ___common
units (the “▇▇▇▇▇▇▇▇▇▇ Units”) representing limited partner interests in the Partnership (the
"Common Units”). Certain terms used but not defined herein have the meanings assigned to them in
the underwriting agreement (the “Underwriting Agreement”), dated as of even date herewith, by and
among the Partnership, certain subsidiaries of the Partnership, Calumet GP, LLC, a Delaware limited
liability company and general partner of the Partnership (the “General Partner,” and together with
the Partnership, the “Calumet Parties”), and the underwriters named therein (the “Underwriters”),
relating to the Partnership’s proposed sale of an aggregate ___common units (the “Underwritten
Units”), to the Underwriters.
This is to confirm the agreement among the Calumet Parties and the ▇▇▇▇▇▇▇▇▇▇ Investors
concerning the purchase of the ▇▇▇▇▇▇▇▇▇▇ Units from the Partnership by the ▇▇▇▇▇▇▇▇▇▇ Investors.
1. Representations, Warranties and Agreements of the Calumet Parties. The Calumet
Parties, jointly and severally, represent and warrant to, and agree with, each of the ▇▇▇▇▇▇▇▇▇▇
Investors that:
(a) Registration. A registration statement on Form S-1 (File No. 333-128880) (the “Initial
Registration Statement”) in respect of the Units has been filed with the Securities and Exchange
Commission (the “Commission” or the “SEC”); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto, have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a “Rule 462(b) Registration
Statement”), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
"Act”), which became effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and no stop order suspending
the effectiveness of the Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act is hereinafter called a “Preliminary Prospectus”;
the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as amended at the time such part
of the Initial Registration Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the
"Registration Statement”; the Preliminary Prospectus dated January [ ], 2006 relating to the Units
that was included in the Registration Statement immediately prior to the Applicable Time (as
defined below) is hereinafter called the “Pricing Prospectus”; the final prospectus, in the form
first filed pursuant to Rule 424(b) under the Act, is hereinafter called the “Prospectus”; and any
“issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Units is
hereinafter called an “Issuer Free Writing Prospectus”). For purposes of this Agreement,
"Applicable Time” means [___] p.m. (New York City time) on the date of this Agreement.
(b) No Stop Order. No order preventing or suspending the use of any Preliminary Prospectus or
any Issuer Free Writing Prospectus has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission.
(c) No Material Misstatements or Omissions in Registration Statement or Prospectus. The
Registration Statement conforms, and any further amendments or supplements to the Registration
Statement will, when they become effective, conform, in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder and do not and will not, as
of the applicable effective date, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus and any supplement or amendment thereto will conform when filed with
the Commission under Rule 424(b), in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder, and will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which
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they were made, not misleading. Notwithstanding the foregoing, the representation and
warranty in this Section 1(c) shall not apply to any statements or omissions made in reliance upon
and in conformity with written information furnished to the Partnership by an Underwriter through
▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein.
(d) No Material Misstatements or Omissions in Pricing Disclosure Package. The Pricing
Prospectus, as supplemented by those Issuer Free Writing Prospectuses and other documents, if any,
listed in Schedule II(a) hereto, taken together (collectively, the “Pricing Disclosure Package”),
as of the Applicable Time, did not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; and each Issuer Free Writing Prospectus listed in
Schedule II(a) or Schedule II(b) hereto does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the
Applicable Time, did not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Each of the statements made by the Partnership in the
Pricing Prospectus, and to be made in the Prospectus and any further amendments or supplements to
the Registration Statement or Prospectus within the coverage of Rule 175(b) of the rules and
regulations under the Act, including (but not limited to) any projections of results of operations
or statements with respect to future available cash or future cash distributions of the Partnership
or the anticipated ratio of taxable income to distributions, was made or will be made with a
reasonable basis and in good faith. Notwithstanding the foregoing, the representation and warranty
in this Section 1(d) shall not apply to any statements or omissions made in the Registration
Statement, the Prospectus or the Pricing Prospectus or any Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing to the Partnership by an
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein.
(e) Formation and Qualification of the Partnership and the General Partner. The Partnership
has been duly formed and is validly existing in good standing as a limited partnership under the
Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) with full partnership
power and authority necessary to enter into this Agreement, to own or lease its properties, to
assume the liabilities assumed by it pursuant to the Contribution Documents and to conduct its
business, in each case in all material respects as described in the Registration Statement and the
Pricing Prospectus. The General Partner has been duly formed and is validly existing in good
standing as a limited liability company under the Delaware Limited Liability Company Act (the
"Delaware LLC Act”) with full limited liability company power and authority to enter into this
Agreement, to own or lease its properties, to assume the liabilities assumed by it pursuant to the
Contribution Documents, to conduct its business and to act as the general partner of the
Partnership, in each case in all material respects as described in the Registration Statement and
the Pricing Prospectus. Each of the Calumet Parties is duly registered or qualified as a foreign
limited partnership or limited liability company, as the case may be, for the transaction of
business under the laws of each jurisdiction in which the character of the business conducted by it
or the nature or location of the properties owned or leased by it makes such registration or
qualification necessary, except where the failure so to register or qualify would not (i) have a
material adverse effect on the general affairs, management, the current or future consolidated
financial position, business prospects, partners’ equity, members’ equity or results of
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operations of the Partnership Entities taken as a whole (a “Material Adverse Effect”), or (ii)
subject the limited partners of the Partnership to any material liability or disability.
(f) Valid Issuance of the Units. The ▇▇▇▇▇▇▇▇▇▇ Units, and the limited partner interests
represented thereby, will be duly authorized by the Partnership Agreement and, when issued and
delivered to the ▇▇▇▇▇▇▇▇▇▇ Investors against payment therefor in accordance with the terms hereof,
will be validly issued, fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by matters described in the Pricing
Prospectus under the caption “The Partnership Agreement — Limited Liability”).
(g) Authority and Authorization. The Partnership has all requisite power and authority to
issue, sell and deliver the ▇▇▇▇▇▇▇▇▇▇ Units, in accordance with and upon the terms and conditions
set forth in this Agreement and the Partnership Agreement.
(h) Due Execution and Delivery of Purchase Agreement and Underwriting Agreement. This
Agreement and the Underwriting Agreement have been duly executed and delivered by each of the
Calumet Parties.
(i) Enforceability of Other Agreements. At or before the Closing Date:
(i) The Partnership Agreement will have been duly authorized, executed and delivered by the
General Partner and Heritage, Calumet Inc., ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Trust I, ▇▇▇▇▇▇▇▇▇▇ Trust II and
▇▇▇▇▇ as the “Organizational Limited Partners” and will be a valid and legally binding agreement of
the General Partner and Heritage, Calumet Inc., ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Trust I, ▇▇▇▇▇▇▇▇▇▇ Trust II
and ▇▇▇▇▇ as the Organizational Limited Partners, enforceable against the General Partner and
Heritage, Calumet Inc., ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Trust I, ▇▇▇▇▇▇▇▇▇▇ Trust II and ▇▇▇▇▇ as the
Organizational Limited Partners in accordance with its terms;
(ii) The General Partner Agreement will have been duly authorized, executed and delivered by
Heritage, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ and will be a valid and legally binding agreement of Heritage, ▇▇▇▇▇
and ▇▇▇▇▇▇▇▇▇▇, enforceable against Heritage, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ in accordance with its terms;
(iii) Each of the Contribution Documents will have been duly authorized, executed and
delivered by the parties thereto and will be valid and legally binding agreements of the Calumet
Entities party thereto enforceable against such parties in accordance with its respective terms;
(iv) The Omnibus Agreement will have been duly authorized, executed and delivered by each of
the parties thereto and will be a valid and legally binding agreement of each of them enforceable
against each of them in accordance with its terms; and
provided that, with respect to each agreement described in this Section 1(i), the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws relating to or affecting creditors’ rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law); provided, further, that the indemnity and contribution provisions contained therein may be
limited by applicable laws or public policy.
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(j) No Conflicts. None of the offering, issuance and sale by the Partnership of the
▇▇▇▇▇▇▇▇▇▇ Units, the execution, delivery and performance of this Agreement or the consummation of
the transactions contemplated hereby (i) conflicts or will conflict with or constitutes or will
constitute a violation of the Partnership Agreement or the General Partner Agreement, (ii)
conflicts or will conflict with or constitutes or will constitute a breach or violation of, or a
default under (or an event which, with notice or lapse of time or both, would constitute such a
default), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which any of the Calumet Entities is a party or by which any of them or any of their
respective properties may be bound or subject, (iii) violates or will violate any statute, law or
regulation or any order, rule, judgment, decree or injunction of any court or governmental agency
or body having jurisdiction over any of the Calumet Entities or any of their properties or (iv)
results or will result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of any of the Calumet Entities, which conflicts, breaches, violations or
defaults, in the case of clauses (ii), (iii) or (iv), would, individually or in the aggregate, have
a Material Adverse Effect or would materially impair the ability of any of the Calumet Entities to
perform their obligations under this Agreement.
(k) Investment Company. None of the Partnership Entities is now, and after giving effect to
the offering and sale of the Units and the application of the proceeds thereof, will be an
“investment company” or a company “controlled by” an “investment company” as such terms are defined
in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(l) Trading. The Units have been approved for trading and quotation on the NASDAQ National
Market.
(m) Not Ineligible Issuer. At the time of filing the Initial Registration Statement, the
Partnership was not and is not an “ineligible issuer,” as defined in Rule 405 under the Act.
2. Purchase and Sale. Subject to the terms and conditions herein set forth, the
Partnership agrees to sell to each of the ▇▇▇▇▇▇▇▇▇▇ Investors, and each of the ▇▇▇▇▇▇▇▇▇▇
Investors hereby agrees, severally and not jointly, to purchase from the Partnership, at a purchase
price of $[ ] per unit, the number of ▇▇▇▇▇▇▇▇▇▇ Units set forth opposite such
▇▇▇▇▇▇▇▇▇▇ Investor’s name in Schedule I hereto.
3. Delivery and Payment for the ▇▇▇▇▇▇▇▇▇▇ Units. Delivery of and payment for the
▇▇▇▇▇▇▇▇▇▇ Units shall be made at 9:30 a.m., New York City time, on [ ],
2006 (such date and time of delivery and payment for the ▇▇▇▇▇▇▇▇▇▇ Units being herein called the
"Closing Date”). Delivery of the ▇▇▇▇▇▇▇▇▇▇ Units shall be made to the ▇▇▇▇▇▇▇▇▇▇ Investors against
payment by the ▇▇▇▇▇▇▇▇▇▇ Investors of the purchase price thereof to or upon the order of the
Partnership by wire transfer payable in same-day funds to an account specified by the Partnership.
4. Conditions of ▇▇▇▇▇▇▇▇▇▇ Investors’ Obligations. The obligations of the ▇▇▇▇▇▇▇▇▇▇
Investors hereunder, as to the ▇▇▇▇▇▇▇▇▇▇ Units, shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the Calumet Parties
herein are, at and as of the Closing Date, true and correct, the condition that the Calumet Parties
shall have performed all of
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their obligations hereunder theretofore to be performed, and the closing of the purchase and
sale of the Underwritten Units shall have occurred.
5. All statements, requests, notices and agreements hereunder shall be in writing, and if to
the ▇▇▇▇▇▇▇▇▇▇ Investors shall be delivered or sent by mail, telex or facsimile transmission to [To
come]; and if to the Partnership shall be delivered or sent by mail to the address of the
Partnership set forth in the Registration Statement, Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, II. Any such
statements, requests, notices or agreements shall take effect upon receipt thereof.
6. This Agreement shall be binding upon, and inure solely to the benefit of, the ▇▇▇▇▇▇▇▇▇▇
Investors and the Calumet Parties, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right under or by virtue of
this Agreement.
7. This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Partnership and the ▇▇▇▇▇▇▇▇▇▇ Investors, or any of them, with respect to the subject
matter hereof.
8. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
9. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and return to us three
(3) counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the ▇▇▇▇▇▇▇▇▇▇
Investors, this letter and such acceptance hereof shall constitute a binding agreement among each
of the ▇▇▇▇▇▇▇▇▇▇ Investors and each of the Calumet Parties.
[Signature page follows.]
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| Very truly yours, | ||||||
| CALUMET SPECIALTY PRODUCTS PARTNERS, L.P. | ||||||
| By: Calumet GP, LLC, its general partner | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| CALUMET GP, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
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Accepted as of the date hereof:
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SCHEDULE I
| Total Number of | ||||
| Common Units | ||||
| ▇▇▇▇▇▇▇▇▇▇ Investors | to be Purchased | |||
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ |
||||
Mac ▇▇▇▇▇▇▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ |
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Total |
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Schedule II(a)
Materials Other Than the Pricing Prospectus
That Comprise the Pricing Disclosure Package
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Schedule II(b)
Issuer Free Writing Prospectuses Not Included
in the Pricing Disclosure Package
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