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EXHIBIT 3.5
CERTIFICATE OF INCORPORATION
THAI ROMO HOLDINGS, INC.
First: The name of the Corporation is Thai Romo Holdings, Inc.
Second: The address of the Corporation's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of the Corporation's registered
agent at such address is The Corporation Trust Company.
Third: The purposes for which the Corporation is formed and the
activities in which it shall have the power to engage shall be limited to the
following:
(a) acquiring and holding, and exercising all of the rights and
privileges of holding, capital stock, notes and other securities of
Thai Romo Limited, a corporation formed under the laws of the
Kingdom of Thailand ("Thai Romo"), and disposing of such capital
stock, notes and other securities in accordance with all applicable
laws and contractual restrictions;
(b) guaranteeing monetary obligations of Thai Romo and
Rutherford-Moran Oil Corporation, a Delaware corporation ("RMOC")
for borrowed money, pledging or hypothecating shares of capital
stock, notes and other securities of Thai Romo held by the
Corporation to secure such obligations, and entering into, executing
and delivering, and performing its obligations and exercising its
rights under, all agreements entered into in connection therewith,
including satisfying any obligations so guaranteed;
(c) entering into, executing and delivering, and performing its
obligations and exercising its rights under (i) the Section 351
Exchange Agreement among RMOC, The Chase Manhattan Bank, N.A.,
Bangkok Branch, Rutherford-Moran Exploration Company, a Texas
corporation ("RMEC"), Thai Romo, the Corporation, and certain other
entities (the "Exchange Agreement"), (ii) the Custodial Agreement
between the Escrow Agent and the parities to the Exchange Agreement,
and (iii) the Underwriting Agreement among RMOC, RMEC, the
Corporation, the Principal Shareholders of RMEC named therein and
the Underwriters named therein;
(d) taking such other actions and exercising such other powers
as may be incidental to and necessary to accomplish any of the
foregoing.
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Without limiting the foregoing, the Corporation shall not, and shall not
be empowered to,
(1) incur indebtedness (including any deferred payment
obligation) or assume or guarantee any indebtedness or obligation of
any other person or entity, other than pursuant to or in connection
with the agreements and undertakings described in clauses (b) and
(c) above; or
(2) without the affirmative vote of all of the members of the
Corporation's board of directors: (A) institute proceedings to be
adjudicated bankrupt or insolvent, (B) consent to the institution
of bankruptcy or insolvency proceedings against it, (C) file a
petition seeking or consenting to reorganization or relief under
any applicable federal or state law relating to bankruptcy or
insolvency, (D) consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator or any other similar
official for itself or any part of its property, (E) make any
assignment for the benefit of creditors, (F) admit in writing its
inability to pay its debts generally as they become due, (G) take
any action in furtherance of any of the foregoing, or (H) amend,
repeal, restate, supplement or otherwise modify this Article III.
Fourth: The total number of shares of stock that the Corporation shall
have authority to issue is One Thousand (1,000) shares of Common Stock, of the
par value of $0.01 per share.
Fifth: The name of the incorporator is Kailan M. Niemeyer, whose
mailing address is 1301 McKinney, Suite 5100, Houston, Texas 77010-3095.
Sixth: The Corporation is to have perpetual existence.
Seventh: The number of directors constituting the initial board of
directors shall be three. The names and addresses of the persons who are to
serve as directors of the Corporation until the first annual meeting of
stockholders or until their successors are elected and qualify are:
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Name Mailing Address
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Patrick R. Rutherford 5 Greenway Plaza, Suite 220
Houston, Texas 77046
John A. Moran 5 Greenway Plaza, Suite 220
Houston, Texas 77046
Michael D. McCoy 5 Greenway Plaza, Suite 220
Houston, Texas 77046
Eighth: Election of directors need not be by written ballot unless the
bylaws of the Corporation shall so provide.
Ninth:
(a) 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 any
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived a
personal benefit. If the Delaware General Corporation Law hereafter is amended
to authorize further elimination or limitation of the liability of directors,
then the liability of a director of the Corporation, in addition to the
limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended Delaware General Corporation Law. Any
repeal or modification of this paragraph by the stockholders of the Corporation
shall be prospective only, and shall not adversely affect any limitation on the
personal liability of a director of the Corporation existing at the time of
such repeal or modification.
(b) The Corporation shall indemnify any director of officer to
the full extent permitted by Delaware law.
Tenth: All of the powers of the Corporation, insofar as the same may be
lawfully vested by this Certificate of Incorporation in the Board of Directors
of the Corporation, are hereby conferred upon the Board of Directors of the
Corporation.
In furtherance and not in limitation of the foregoing provisions of this
Article Ninth, and for the purpose of the orderly management of the business
and the conduct of the affairs of the Corporation, the Board of Directors of
the Corporation shall have the power to adopt, amend or repeal from time to time
the bylaws of the Corporation, subject to the right of the stockholders of the
Corporation entitled to vote thereon to adopt, amend or repeal bylaws of the
Corporation.
Eleventh: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or
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hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this Certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true.
Accordingly, I have hereunto set my hand this 23rd day of May, 1996.
/s/ KAILAN M. NIEMEYER
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Kailan M. Niemeyer
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THAI ROMO HOLDINGS, INC.
Certificate of Amendment
to
Certificate of Incorporation
Thai Romo Holdings, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
Company"), does hereby certify:
First: That the Board of Directors of the Company, pursuant to a
written consent, adopted resolutions proposing and declaring advisable that
Article Third of the Certificate of Incorporation of the Company be amended to
read in its entirety as follows:
"Third: The nature of the business and the purpose to be
conducted or promoted by the Company 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."
Second: That in lieu of a special meeting and vote of stockholders, the
holder of all of the outstanding stock entitled to vote on such amendment has
given its written consent to such amendment in accordance with the provisions
of Section 228 of the General Corporation Law of the State of Delaware.
Third: That the aforesaid amendments were duly adopted in accordance
with the applicable provisions of Sections 141(f), 228 and 242 of the General
Corporation Law of the State of Delaware.
In Witness Whereof, the Company has caused this Certificate to be signed
by its Treasurer this 20th day of February, 1997.
THAI ROMO HOLDINGS, INC.
By: /s/ DAVID F. CHAVENSON
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David F. Chavenson
Treasurer