CERTIFICATE OF INCORPORATION
OF
FERRELLGAS FINANCE CORP.
The undersigned, for the purpose of incorporating and
organizing a corporation under the General Corporation Law of the State
of Delaware, hereby adopts the following Articles of Incorporation:
FIRST: The name of the corporation is
FERRELLGAS FINANCE CORP.
SECOND: The address of the corporation's initial
registered office in the State of Delaware is 1209 Orange Street, in
the City of Wilmington, County of New Castle, Delaware 19801. The name
of the corporation's initial registered agent at such address is The
Corporation Trust Company.
THIRD: The purpose of the corporation is to
engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
FOURTH: The corporation shall have authority to
issue 2000 shares of Common Stock having a par value of $1.00 per
share.
FIFTH: The name and mailing address of the
incorporator are David S. Mouber, 8428 Delmar Lane, Prairie Village,
Kansas 66207.
SIXTH: The name of the person who is to serve as the
sole director until the first annual meeting of stockholders, or until
his successor is elected and shall qualify, is James E. Ferrell, whose
mailing address is One Liberty Plaza, Liberty, Missouri 64068.
SEVENTH: The duration of the corporation is perpetual
EIGHTH:
1. Elimination of Certain Liability of Directors.
A director of the corporation shall not be personally liable to the
corporation 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 corporation 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. If the
General Corporation Law of the State of Delaware is amended subsequent
to the date hereof to authorize corporate action further limiting or
eliminating the personal liability of directors, then the liability of
a director of the corporation shall be limited or eliminated to the
fullest extent permitted by the General Corporation Law of the State of
Delaware, as so amended. Any repeal or modification of the foregoing
paragraph by the stockholders of the corporation shall not adversely
affect any right or protection of a director of the corporation
existing at the time of such repeal or modification. Elimination of
Certain Liability of Directors. A director of the corporation shall not
be personally liable to the corporation 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
corporation 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. If the General Corporation Law of
the State of Delaware is amended subsequent to the date hereof to
authorize corporate action further limiting or eliminating the personal
liability of directors, then the liability of a director of the
corporation shall be limited or eliminated to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as
so amended. Any repeal or modification of the foregoing paragraph by
the stockholders of the corporation shall not adversely affect any
right or protection of a director of the corporation existing at the
time of such repeal or modification.
2.Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or
a person of whom he or she is the legal representative, is or was a
director or officer, of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall
be indemnified and held harmless by the corporation to the fullest
extent authorized by the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment
permits the corporation to provide broader indemnification rights than
said law permitted the corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by such
person in connection therewith and such indemnification shall continue
as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and
administrators: provided, however, that, except as provided in
paragraph (b) hereof, the corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part
thereof) was authorized by the board of directors of the corporation.
The right to indemnification conferred in this Section shall be a
contract right and shall include the right to be paid by the
corporation the expenses incurred in defending any such proceeding in
advance of its final disposition: provided, however, that, if the
General Corporation Law of the State of Delaware requires, the payment
of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit
plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if
it shall ultimately be determined that such director or officer is not
entitled to be indemnified under this Section or otherwise. The
corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the corporation with the
same scope and effect as the foregoing indemnification of directors and
oRight to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or
a person of whom he or she is the legal representative, is or was a
director or officer, of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall
be indemnified and held harmless by the corporation to the fullest
extent authorized by the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment
permits the corporation to provide broader indemnification rights than
said law permitted the corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by such
person in connection therewith and such indemnification shall continue
as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and
administrators: provided, however, that, except as provided in
paragraph (b) hereof, the corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part
thereof) was authorized by the board of directors of the corporation.
The right to indemnification conferred in this Section shall be a
contract right and shall include the right to be paid by the
corporation the expenses incurred in defending any such proceeding in
advance of its final disposition: provided, however, that, if the
General Corporation Law of the State of Delaware requires, the payment
of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit
plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if
it shall ultimately be determined that such director or officer is not
entitled to be indemnified under this Section or otherwise. The
corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the corporation with the
same scope and effect as the foregoing indemnification of directors and
officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of
this Section is not paid in full by the corporation within thirty days
after a written claim has been received by the corporation, the
claimant may at any time thereafter bring suit against the corporation
to recover the unpaid amount of the claim and, if successful in whole
or in part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
corporation) that the claimant has not met the standards of conduct
which make it permissible under the General Corporation Law of the
State of Delaware to indemnify the claimant for the amount claimed, but
the burden of proving such defense shall be on the corporation. Neither
the failure of the corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual
determination by the corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard or conduct, shall be a defense to the
action or create a presumption that the claimant has not met the
applicable standard of conducRight of Claimant to Bring Suit. If a
claim under paragraph (a) of this Section is not paid in full by the
corporation within thirty days after a written claim has been received
by the corporation, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim and,
if successful in whole or in part, the claimant shall be entitled to be
paid also the expense of prosecuting such claim. It shall be a defense
to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has
been tendered to the corporation) that the claimant has not met the
standards of conduct which make it permissible under the General
Corporation Law of the State of Delaware to indemnify the claimant for
the amount claimed, but the burden of proving such defense shall be on
the corporation. Neither the failure of the corporation (including its
Board of Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual
determination by the corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard or conduct, shall be a defense to the
action or create a presumption that the claimant has not met the
applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of
its final disposition conferred in this Section shall not be exclusive
of any other right which any person may have or hereafter acquire under
any statute, provision of the Certificate of Incorporation,
by-Non-Exclusivity of Rights. The right to indemnification and the
payment of . expenses incurred in defending a proceeding in advance of
its final disposition conferred in this Section shall not be exclusive
of any other right which any person may have or hereafter acquire under
any statute, provision of the Certificate of Incorporation, by-law,
agreement, vote of stockholders or disinterested directors or
otherwise.
(d) Insurance. The corporation may at its option maintain insurance, at
its expense, to protect itself and any director, officer, employee or
agent of the corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability
or loss, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss under the
General Corporation Law ofInsurance. The corporation may at its option
maintain insurance, at its expense, to protect itself and any director,
officer, employee or agent of the corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such
expense, liability or loss, whether or not the corporation would have
the power to indemnify such person against such expense, liability or
loss under the General Corporation Law of the State of Delaware.
NINTH: The Board of Directors of the corporation is
authorized and empowered to make, alter, amend or repeal any or all of
the Bylaws of the corporation, subject to the power of the stockholders
of the corporation to make, alter, amend or repeal any or all of the
Bylaws of the corporation.
TENTH: The Corporation reserves the right to any time
and from time to time to amend, alter, change, or repeal any provision
contained in these Articles of Incorporation, in the manner now or
hereafter prescribed by law; and all rights conferred upon
stockholders, directors, or any other persons whomsoever by and
pursuant to these Articles of Incorporation in their present form or as
hereafter amended are granted subject to this reservation.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 28th day of
April, 1994.
David S. Mouber, Incorporator