UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended October 31, 1996
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from __________ to __________
Commission file numbers: 1-11331
333-06693
Ferrellgas Partners, L.P.
Ferrellgas Partners Finance Corp.
(Exact name of registrants as specified in their charters)
Delaware 43-1698480
Delaware 43-1742520
---------------------------- ---------------------
(States or other jurisdictions of (I.R.S. Employer
incorporation or organization) Identification Nos.)
One Liberty Plaza, Liberty, Missouri 64068
(Address of principal executive offices) (Zip Code)
Registrants' telephone number, including area code: (816) 792-1600
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [ X ] No [ ]
At November 15, 1996, the registrants had units or shares outstanding as
follows:
Ferrellgas Partners, L.P. - 14,612,580 Common Units
16,593,721 Subordinated Units
Ferrellgas Partners Finance
Corp. 1,000 Common Stock
<PAGE>
FERRELLGAS PARTNERS, L.P.
FERRELLGAS PARTNERS FINANCE CORP.
Table of Contents
Page
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Ferrellgas Partners, L.P. and Subsidiaries
==========================================
Consolidated Balance Sheets - October 31, 1996 and July 31, 1996 1
Consolidated Statements of Earnings -
Three months ended October 31, 1996 and 1995 2
Consolidated Statement of Partners' Capital -
Three months ended October 31, 1996 3
Consolidated Statements of Cash Flows -
Three months ended October 31, 1996 and 1995 4
Notes to Consolidated Financial Statements 5
Ferrellgas Partners Finance Corp.
=================================
Balance Sheets - October 31, 1996 and July 31, 1996 7
Statement of Earnings - Three months ended October 31, 1996 7
Statement of Cash Flows - Three months ended October 31, 1996 8
Notes to Financial Statements 8
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS 9
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS 11
ITEM 2. CHANGES IN SECURITIES 11
ITEM 3. DEFAULTS UPON SENIOR SECURITIES 11
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS 11
ITEM 5. OTHER INFORMATION 11
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 11
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
FERRELLGAS PARTNERS, L.P. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except unit data)
October 31, July 31,
<S> <C> <C>
ASSETS 1996 1996
- ---------------------------------------------------------- ---------------- -----------------
(unaudited)
Current Assets:
Cash and cash equivalents $ 20,809 $ 13,770
Accounts and notes receivable 94,848 70,118
Inventories 55,280 41,395
Prepaid expenses and other current assets 8,816 5,685
---------------- -----------------
Total Current Assets 179,753 130,968
Property, plant and equipment, net 401,079 403,732
Intangible assets, net 109,032 107,960
Other assets, net 11,669 11,635
---------------- -----------------
Total Assets $701,533 $654,295
================ =================
LIABILITIES AND PARTNERS' CAPITAL
- ----------------------------------------------------------
Current Liabilities:
Accounts payable $ 88,637 $ 48,400
Other current liabilities 47,123 41,754
Short-term borrowings 40,773 25,520
---------------- -----------------
Total Current Liabilities 176,533 115,674
Long-term debt 451,910 439,112
Other liabilities 12,268 12,402
Contingencies and commitments
Minority interest 2,272 2,498
Partners' Capital:
Common unitholders (14,612,580 units outstanding
in both October 1996 and July 1996) 59,244 71,324
Subordinated unitholders (16,593,721 units outstanding
in both October 1996 and July 1996) 57,584 71,302
General partner (58,278) (58,017)
---------------- -----------------
Total Partners' Capital 58,550 84,609
---------------- -----------------
Total Liabilities and Partners' Capital $701,533 $654,295
================ =================
</TABLE>
See notes to consolidated financial statements
1
<PAGE>
<TABLE>
<CAPTION>
FERRELLGAS PARTNERS, L.P. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(in thousands, except unit data)
(unaudited)
For the three months ended
------------------------------------
October 31, October 31,
1996 1995
--------------- ---------------
Revenues:
<S> <C> <C>
Gas liquids and related product sales $156,764 $114,529
Other 11,096 10,059
--------------- ---------------
Total revenues 167,860 124,588
Cost of product sold (exclusive of
depreciation, shown separately below) 101,075 69,109
--------------- ---------------
Gross profit 66,785 55,479
Operating expense 48,967 40,870
Depreciation and amortization expense 10,831 8,326
General and administrative expense 3,767 3,435
Vehicle lease and tank expense 1,480 1,086
--------------- ---------------
Operating income 1,740 1,762
Interest expense (11,602) (9,012)
Interest income 379 256
Loss on disposal of assets (880) (384)
--------------- ---------------
Loss before minority interest (10,363) (7,378)
Minority interest (65) (75)
--------------- ---------------
Net loss (10,298) (7,303)
General partner's interest in net loss (103) (73)
--------------- ---------------
Limited partners' interest in net loss $(10,195) $(7,230)
=============== ===============
Net loss per limited partner unit $(0.33) $(0.23)
=============== ===============
Weighted average number of units outstanding 31,206.3 31,036.1
=============== ===============
</TABLE>
See notes to consolidated financial statements
2
<PAGE>
<TABLE>
<CAPTION>
FERRELLGAS PARTNERS, L.P. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF PARTNERS' CAPITAL
(in thousands)
(unaudited)
Number of units
--------------------------- Total
Sub- Sub- General partners'
Common ordinated Common ordinated partner capital
------------ ------------- ------------ ------------ ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
July 31, 1996 14,612.6 16,593.7 $71,324 $71,302 ($58,017) $84,609
Quarterly distributions (7,306) (8,297) (158) (15,761)
Net loss (4,774) (5,421) (103) (10,298)
------------ ------------- ------------ ------------ ------------- -------------
October 31, 1996 14,612.6 16,593.7 $59,244 $57,584 $(58,278) $58,550
============ ============= ============ ============ ============= =============
</TABLE>
See notes to consolidated financial statements.
3
<PAGE>
<TABLE>
<CAPTION>
FERRELLGAS PARTNERS, L.P. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
For the three months ended
---------------------------------
October 31, 1996 October 31, 1995
---------------- ------------------
Cash Flows From Operating Activities:
<S> <C> <C>
Net loss $(10,298) $(7,303)
Reconciliation of net loss to net cash from
operating activities:
Depreciation and amortization 10,831 8,326
Other 1,730 891
Changes in operating assets and liabilities
net of effects from business acquisitions:
Accounts and notes receivable (25,032) (16,900)
Inventories (13,864) (9,130)
Prepaid expenses and other current assets (3,080) (4,699)
Accounts payable 40,237 16,196
Other current liabilities 6,164 (1,434)
Other liabilities (134) (339)
--------------- ---------------
Net cash provided (used) by operating activities 6,554 (14,392)
--------------- ---------------
Cash Flows From Investing Activities:
Business acquisitions (8,247) (1,650)
Capital expenditures (3,832) (3,649)
Other 933 464
--------------- ---------------
Net cash used by investing activities (11,146) (4,835)
--------------- ---------------
Cash Flows From Financing Activities:
Net additions to short-term borrowings 15,253 11,600
Additions to long-term debt 12,747 8,153
Reductions of long-term debt (337) (87)
Distributions (15,761) (15,813)
Other (271) 67
--------------- --------------
Net cash provided by financing activities 11,631 3,920
--------------- ---------------
Increase (decrease) in cash and cash equivalents 7,039 (15,307)
Cash and cash equivalents - beginning of period 13,770 29,877
--------------- ---------------
Cash and cash equivalents - end of period $20,809 $14,570
=============== ===============
Cash paid for interest $10,795 $13,117
=============== ===============
</TABLE>
See notes to consolidated financial statements
4
<PAGE>
FERRELLGAS PARTNERS, L.P. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
OCTOBER 31, 1996
(unaudited)
A. The financial statements reflect all adjustments which are, in the opinion
of management, necessary for a fair statement of the interim periods
presented. All adjustments to the financial statements were of a normal,
recurring nature.
B. The preparation of financial statements in conformity with generally
accepted accounting principles ("GAAP") requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosures of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reported period. Actual results could differ from these
estimates.
C. The propane industry is seasonal in nature with peak activity during the
winter months. Therefore, the results of operations for the periods ended
October 31, 1996 and October 31, 1995 are not necessarily indicative of the
results to be expected for a full year.
D. Inventories consist of:
<TABLE>
<CAPTION>
October 31, July 31,
<S> <C> <C>
(in thousands) 1996 1996
---------------- --------------
Liquefied propane gas and related products $47,523 $33,366
Appliances, parts and supplies 7,757 8,029
--------------- ---------------
$55,280 $41,395
================ ==============
</TABLE>
In addition to inventories on hand, the Partnership enters into contracts
to buy product for supply purposes. All such contracts have terms of less
than one year and call for payment based on market prices at date of
delivery.
<TABLE>
<CAPTION>
Property, plant and equipment, net consist of:
October 31, July 31,
<S> <C> <C>
(in thousands) 1996 1996
--------------- ---------------
Property, plant and equipment $598,380 $596,107
Less: accumulated depreciation 197,301 192,375
--------------- ---------------
$401,079 $403,732
=============== ===============
</TABLE>
<TABLE>
<CAPTION>
Intangibles, net consist of:
October 31, July 31,
<S> <C> <C>
(in thousands) 1996 1996
--------------- ---------------
Intangibles $208,180 $203,761
Less: accumulated amortization 99,148 95,801
--------------- ---------------
$109,032 $107,960
=============== ===============
</TABLE>
E. The Partnership is threatened with or named as a defendant in various
lawsuits which, among other items, claim damages for product liability. It
is not possible to determine the ultimate disposition of these matters;
however, management is of the opinion that there are no known claims or
contingent claims that are likely to have a material adverse effect on the
results of operations or financial condition of the Partnership.
5
<PAGE>
F. On September 14, 1996, the Partnership paid a cash distribution of $0.50
per unit for the quarter ended July 31, 1996. On November 18, 1996, the
Partnership declared its first-quarter cash distribution of $0.50 per unit,
payable December 13, 1996.
G. On April 30, 1996, Ferrellgas, Inc. (the "General Partner") consummated
the purchase of all of the stock of Skelgas Propane, Inc. ("Skelgas"),
a subsidiary of Superior Propane, Inc. of Toronto, Canada. The cash
purchase price, after working capital adjustments, was $86,400,000.
As of May 1, 1996, the General Partner (i) caused Skelgas and each of its
subsidiaries to be merged into the General Partner and (ii) transferred all
of the assets of Skelgas and its subsidiaries to the Ferrellgas, L.P. (the
"Operating Partnership"). In exchange, the Operating Partnership assumed
substantially all of the liabilities, whether known or unknown, associated
with Skelgas and its subsidiaries and their propane business (excluding
income tax liabilities). In consideration of the retention by the General
Partner of certain income tax liabilities, Ferrellgas Partners, L.P. (the
"Partnership") issued 41,203 Common Units to the General Partner. The
liabilities assumed by the Operating Partnership included the loan
agreement under which the General Partner borrowed funds to pay the
purchase price for Skelgas. Immediately following the transfer of assets
and related transactions described above, the Operating Partnership repaid
the loan with cash and borrowings under the Operating Partnership's
existing acquisition bank credit line. The total assets contributed to the
Operating Partnership (at the General Partner's cost basis) have been
preliminarily allocated as follows: (i) working capital of $17,972,000,
(ii) property, plant and equipment of $63,068,000 and (iii) the balance to
intangible assets. The transaction has been accounted for as a purchase
and, accordingly, the results of operations of Skelgas have been included
in the consolidated financial statements from the date of contribution.
The following pro forma financial information assumes that the acquisition
of Skelgas and the issuance of the 9 3/8% $160,000,000 Senior Secured Notes
occurred as of August 1, 1995.
Three months ended
--------------------------------
Pro Forma
October 31, October 31,
(in thousands) 1996 1995
--------------- ---------------
Total revenues $167,860 $138,634
Net loss (10,298) (10,778)
6
<PAGE>
<TABLE>
<CAPTION>
FERRELLGAS PARTNERS FINANCE CORP.
(a wholly owned subsidiary of Ferrellgas Partners, L.P.)
BALANCE SHEETS
October 31, July 31,
<S> <C> <C>
ASSETS 1996 1996
- -------------------------------------------------------------------- ------------------- -------------------
(unaudited)
Cash $1,000 $1,000
------------------- -------------------
Total Assets $1,000 $1,000
=================== ===================
STOCKHOLDER'S EQUITY
- --------------------------------------------------------------------
Common stock, $1.00 par value; 2,000 shares
authorized; 1,000 shares issued and outstanding $1,000 $1,000
Additional paid in capital 93 42
Accumulated deficit (93) (42)
------------------- -------------------
Total Stockholder's Equity $1,000 $1,000
=================== ===================
</TABLE>
STATEMENT OF EARNINGS
(unaudited)
Three Months
Ended
October 31,
1996
------------------
General and administrative expense $ 51
------------------
Net loss $(51)
==================
See notes to financial statements.
7
<PAGE>
FERRELLGAS PARTNERS FINANCE CORP.
(A wholly owned subsidiary of Ferrellgas Partners, L.P.)
STATEMENT OF CASH FLOWS
(unaudited)
Three Months Ended
October 31,
1996
--------------------
Cash Flows From Operating Activities:
Net loss $(51)
--------------------
Cash used by operating activities (51)
--------------------
Cash Flows From Financing Activities:
Capital contribution 51
--------------------
Cash provided by financing activities 51
--------------------
Increase (decrease) in cash -
Cash - beginning of period 1,000
--------------------
Cash - end of period $1,000
====================
See notes to financial statements.
NOTES TO FINANCIAL STATEMENTS
OCTOBER 31, 1996
(unaudited)
A. Ferrellgas Partners Finance Corp., a Delaware corporation, was
formed on March 28, 1996, and is a wholly-owned subsidiary of
Ferrellgas Partners, L.P.
B. The financial statements reflect all adjustments which are, in the opinion
of management, necessary for a fair statement of the interim periods
presented. All adjustments to the financial statements were of a normal,
recurring nature.
8
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following is a discussion of the results of operations and liquidity
and capital resources of Ferrellgas Partners, L.P. (the "Partnership" or "MLP").
Except for the $160,000,000 of 9 3/8% Senior Secured Notes issued in April 1996
by the MLP (the "MLP Senior Notes") and the related interest expense,
Ferrellgas, L.P. (the "Operating Partnership" or "OLP") accounts for nearly all
of the consolidated assets, liabilities, sales and earnings of the MLP. When the
discussion refers to the consolidated MLP, the term Partnership will be used.
Ferrellgas Partners Finance Corp. has nominal assets and does not
conduct any operations. Accordingly, a discussion of the results of
operations and liquidity and capital resources is not presented.
Results of Operations
- ---------------------
The propane industry is seasonal in nature with peak activity during the
winter months. Due to the seasonality of the business, results of operations for
the three months ended October 31, 1996 and 1995, are not necessarily indicative
of the results to be expected for a full year. Other factors affecting the
results of operations include competitive conditions, demand for product,
variations in weather and fluctuations in propane prices. As the Partnership has
grown through acquisitions, fixed costs such as personnel costs, depreciation
and interest expense have increased. Over time, these fixed cost increases have
caused losses in the first and fourth quarters and net income in the second and
third quarters to be more pronounced.
Three Months Ended October 31, 1996 vs. October 31, 1995
- --------------------------------------------------------
Total Revenues. Total revenues increased 34.7% to $167,860,000 as compared
to $124,588,000 in the first quarter of fiscal 1996, primarily due to increased
retail propane volumes, increased sales price per retail gallon and an increase
in revenues from other operations (wholesale marketing, chemical feedstocks and
net trading operations).
Retail volumes increased 23.5% to 162,281,000 gallons as compared to
131,368,000 gallons for the year ago quarter, primarily due to acquisitions, and
to a lesser extent a strong crop drying season and slightly colder temperatures
than the prior year. A volatile propane market during the quarter caused an
increase to the cost of product which in turn caused an increase in sales price
per gallon. Revenues from other operations increased by $6,281,000 primarily due
to increased wholesale marketing volumes and an increased price per gallon.
Gross Profit. Gross profit increased 20.4% to $66,785,000 as compared to
$55,479,000 in the first quarter of fiscal 1996, primarily due to increased
retail propane volumes attributed to acquisition related growth. Management is
unable to assess whether the increases in product costs described above will
continue or the potential impact of such cost increases on gross profit.
Operating Expenses. Operating expenses increased 19.8% to $48,967,000 as
compared to $40,870,000 in the first quarter of fiscal 1996 primarily due to
acquisition related increases in personnel costs, plant and office expenses, and
vehicle and other expenses.
Depreciation and Amortization. Depreciation and amortization expense
increased 30.1% to $10,831,000 as compared to $8,326,000 for the year ago period
primarily due to acquisitions of propane businesses.
Interest expense. Interest expense increased 28.7% to $11,602,000 as
compared to $9,012,000 in the first quarter of fiscal 1996. This increase is
primarily the result of increased borrowings, partially offset by a small
decrease in the overall average interest rate paid by the Partnership on its
borrowings.
9
<PAGE>
Liquidity and Capital Resources
- -------------------------------
The ability of the MLP to satisfy its obligations is dependent upon future
performance, which will be subject to prevailing economic, financial, business
and weather conditions and other factors, many of which are beyond its control.
For the fiscal year ending July 31, 1997, the General Partner believes that the
OLP will have sufficient funds to meet its obligations and enable it to
distribute to the MLP sufficient funds to permit the MLP to meet its obligations
with respect to the MLP Senior Notes issued in April 1996, and enable it to
distribute the Minimum Quarterly Distribution ($0.50 per Unit) on all Common
Units and Subordinated Units. Future maintenance and working capital needs of
the MLP are expected to be provided by cash generated from future operations,
existing cash balances and the working capital borrowing facility. In order to
fund expansive capital projects and future acquisitions, the OLP may borrow on
existing bank lines or the MLP may issue additional Common Units. Toward this
purpose the MLP maintains a shelf registration statement with the Securities and
Exchange Commission for 1,887,420 Common Units representing limited partner
interests in the MLP. The Common Units may be issued from time to time by the
MLP in connection with the OLP's acquisition of other businesses, properties or
securities in business combination transactions.
Operating Activities. Cash provided by operating activities was $6,554,000
for the three months ended October 31, 1996, compared to $(14,392,000) for the
prior period. This increase is primarily due to the timing of payments on
increased purchases of inventory.
Investing Activities. During the three months ended October 31, 1996, the
Partnership made total acquisition capital expenditures of $7,724,000 (including
working capital acquired of $21,000). This amount was funded by $8,247,000 cash
payments (including $1,115,000 for transition costs previously accrued for
fiscal 1996 acquisitions) and $592,000 in other costs and consideration.
During the three months ended October 31, 1996, the Partnership made growth
and maintenance capital expenditures of $3,832,000 consisting primarily of the
following: 1) additions to Partnership-owned customer tanks and cylinders, 2)
vehicle lease buyouts, 3) relocating and upgrading district plant facilities,
and 4) development and upgrading computer equipment and software. Capital
requirements for repair and maintenance of property, plant and equipment are
relatively low since technological change is limited and the useful lives of
propane tanks and cylinders, the Partnership's principal physical assets, are
generally long. The Partnership maintains its vehicle and transportation
equipment fleet by leasing light and medium duty trucks and tractors. The
General Partner believes vehicle leasing is a cost effective method for meeting
the Partnership's transportation equipment needs. The Partnership continues
seeking to expand its operations through strategic acquisitions of smaller
retail propane operations located throughout the United States. These
acquisitions will be funded through internal cash flow, external borrowings or
the issuance of additional Partnership interests. The Partnership does not have
any material commitments of funds for capital expenditures other than to support
the current level of operations. In fiscal 1997, the Partnership expects growth
and maintenance capital expenditures to increase slightly over fiscal 1996
levels.
Financing Activities. During the three months ended October 31, 1996, the
Partnership borrowed $28,000,000 from its Credit Facility to fund working
capital, business acquisitions, and capital expenditure needs. At October 31,
1996, $72,500,000 of borrowings were outstanding under the revolving portion of
the Credit Facility. Letters of credit outstanding, used primarily to secure
obligations under certain insurance arrangements, totaled $26,430,000. At
October 31, 1996, the Operating Partnership had $106,070,000 available for
general corporate, acquisition and working capital purposes under the Credit
Facility. On November 18, 1996, the Partnership declared a cash distribution of
$0.50 per unit, payable December 13, 1996.
10
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
None.
ITEM 2. CHANGES IN SECURITIES.
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
None.
ITEM 5. OTHER INFORMATION.
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits
3.1 Agreement of Limited Partnership of Ferrellgas Partners, L.P.
(Incorporated by reference to the same numbered Exhibit to the
Partnership's Current Report on Form 8-K filed August 15, 1994.)
3.2 Articles of Incorporation for Ferrellgas Partners Finance Corp.
27.1 Financial Data Schedule - Ferrellgas Partners, L.P.
(filed in electronic format only)
27.2 Financial Data Schedule - Ferrellgas Partners Finance Corp.
(filed in electronic format only)
(b) Reports on Form 8-K
None.
11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrants have duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
FERRELLGAS PARTNERS, L.P.
By Ferrellgas, Inc. (General Partner)
Date: December 13, 1996 By /s/ Danley K. Sheldon
---------------------
Danley K. Sheldon
Senior Vice President and
Chief Financial Officer (Principal
Financial and Accounting Officer)
FERRELLGAS PARTNERS FINANCE CORP.
Date: December 13, 1996 By /s/ Danley K. Sheldon
---------------------
Danley K. Sheldon
Senior Vice President and
Chief Financial Officer (Principal
Financial and Accounting Officer)
12
CERTIFICATE OF INCORPORATION
OF
FERRELLGAS PARTNERS 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 PARTNERS 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 Michael J. Beal,1200 Main Street, Suite 3500, Kansas
City, Missouri 64105.
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.
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.
<PAGE>
Indemnification and Insurance.
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 required,
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.
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 conduct.
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.
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 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 March, 1996.
Michael J. Beal, Incorporator
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