<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 25, 1997
REGISTRATION NO.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
RUTHERFORD-MORAN OIL CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 1311 76-0499690
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
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5 GREENWAY PLAZA, SUITE 220
HOUSTON, TEXAS 77046
(713) 622-5555
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------------
DAVID F. CHAVENSON
RUTHERFORD-MORAN OIL CORPORATION
5 GREENWAY PLAZA
HOUSTON, TEXAS 77046
(713) 622-5555
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------
With a Copy to:
ALAN J. BOGDANOW
HUGHES & LUCE, L.L.P.
1717 MAIN STREET, SUITE 2800
DALLAS, TEXAS 75201
(214) 939-5500
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC: As soon as practicable
after the effective date of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
10 3/4% Senior Subordinated Notes
Due 2004....................... $120,000,000 100% $120,000,000 $36,364.00
==================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
TABLE OF ADDITIONAL REGISTRANTS
(EACH OF THE FOLLOWING SUBSIDIARIES OF RUTHERFORD-MORAN OIL CORPORATION, AND
EACH OTHER SUBSIDIARY THAT IS OR BECOMES A GUARANTOR OF THE SECURITIES
REGISTERED HEREBY, IS HEREBY DEEMED TO BE A REGISTRANT).
<TABLE>
<CAPTION>
PRIMARY
STANDARD
STATE OR OTHER INDUSTRIAL I.R.S. EMPLOYER
JURISDICTION OF CLASSIFICATION IDENTIFICATION
NAME INCORPORATION NUMBER NUMBER
---- ------------------- -------------- ---------------
<S> <C> <C> <C>
Thai Romo Limited......................... Kingdom of Thailand 1311 76-0435668
Thai Romo Holdings, Inc................... Delaware 1311 76-0511017
Rutherford-Moran Exploration Company...... Delaware 1311 76-0321674
</TABLE>
<PAGE> 3
RUTHERFORD-MORAN OIL CORPORATION
Cross Reference Sheet Pursuant to Rule 404(a) and Item 501 of Regulation
S-K, showing the location in the prospectus of the information required to be
included therein in accordance with Part I of Form S-4.
<TABLE>
<CAPTION>
FORM S-4 LOCATION OR HEADING
ITEM NUMBER AND CAPTION IN THE PROSPECTUS
----------------------- -------------------
<C> <S> <C>
1. Forepart of Registration Statement and Outside
Front Cover Page of Prospectus.............. Forepart of Registration Statement; Outside
Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages of
Prospectus.................................. Inside Front and Outside Back Cover Pages of
Prospectus
3. Risk Factors, Ratio of Earnings to Fixed
Charges and Other Information............... Forepart of Prospectus; Prospectus Summary;
Risk Factors; Selected Financial Data
4. Terms of the Transaction...................... Prospectus Summary; The Exchange Offer;
Description of The Notes; Certain Federal
Income Tax Considerations; Risk Factors
5. Pro Forma Financial Information............... Selected Financial Data
6. Material Contracts with Company Being
Acquired.................................... *
7. Additional Information Required for Reoffering
by Persons and Parties Deemed to be
Underwriters................................ *
8. Interests of Named Experts and Counsel........ *
9. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities................................. *
10. Information with Respect to S-3 Registrants... *
11. Incorporation of Certain Information by
Reference................................... *
12. Information with Respect to S-2 or S-3
Registrants................................. *
13. Incorporation of Certain Information by
Reference................................... *
14. Information with Respect to Registrants Other
Than S-3 or S-2 Registrants................. Prospectus Summary; Selected Financial Data;
Management's Discussion and Analysis of
Financial Condition and Results of
Operations; Business and Properties
15. Information with Respect to S-3 Companies..... *
16. Information with Respect to S-2 or S-3
Companies................................... *
17. Information with Respect to Companies Other
Than S-3 or S-2 Companies................... *
18. Information if Proxies, Consents or
Authorizations are to be Solicited.......... *
19. Information if Proxies, Consents or
Authorizations are not to be Solicited or in
an
Exchange Offer.............................. *
</TABLE>
- ---------------
* Item is omitted because the answer is negative or the item is inapplicable.
<PAGE> 4
INFORMATION CONTAINED IN THIS PROSPECTUS IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT
BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE
IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED NOVEMBER 25, 1997
OFFER TO EXCHANGE
10 3/4% SENIOR SUBORDINATED NOTES DUE 2004
FOR ANY AND ALL OUTSTANDING 10 3/4% SENIOR SUBORDINATED NOTES DUE 2004
OF
RUTHERFORD-MORAN OIL CORPORATION
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON JANUARY , 1998, UNLESS EXTENDED
Rutherford-Moran Oil Corporation (the "Company" or the "Registrant") hereby
offers, upon the terms and subject to the conditions set forth in this
Prospectus and the accompanying Letter of Transmittal (which together constitute
the "Exchange Offer"), to exchange an aggregate principal amount of up to $120
million of 10 3/4% Senior Subordinated Notes due 2004 of the Company (the "New
Notes") for a like aggregate principal amount of the issued and outstanding
10 3/4% Senior Subordinated Notes due 2004 (the "Old Notes," and collectively
with the New Notes, the "Notes") from the registered holders thereof (the
"Holders"). Interest on the Notes is payable semi-annually commencing April 1,
1998 with a final maturity date of October 1, 2004. As of the date of this
Prospectus, $120,000,000 aggregate principal amount of the Old Notes is
outstanding. The terms of the New Notes and the Old Notes are identical in all
material respects, except for certain transfer restrictions relating to the Old
Notes.
(cover continued on next page)
SEE "RISK FACTORS" BEGINNING ON PAGE 18 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PARTICIPANTS IN THE EXCHANGE OFFER.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
THE DATE OF THIS PROSPECTUS IS DECEMBER , 1997
<PAGE> 5
(cover page continued)
The Exchange Offer is being made to satisfy certain obligations of the
Registrant under the Registration Rights Agreement, dated as of September 29,
1997, among the Registrant, the Subsidiary Guarantors (as defined and, together
with the Company, the "Registrants") and the Initial Purchasers (as defined)
(the "Registration Rights Agreement"). Upon consummation of the Exchange Offer,
holders of Old Notes that were not prohibited from participating in the Exchange
Offer and did not tender their Old Notes will not have any registration rights
under the Registration Rights Agreement with respect to such nontendered Old
Notes and, accordingly, such Old Notes will continue to be subject to the
restrictions on transfer contained in the legend on the Old Notes.
Based on no-action letters issued by the staff of the Securities and
Exchange Commission (the "Commission") to third parties, the Company believes
that the New Notes issued pursuant to the Exchange Offer in exchange for Old
Notes may be offered for resale, resold and otherwise transferred by any holder
of such New Notes (other than any such holder that is an "affiliate" of the
Registrant within the meaning of Rule 405 under the Securities Act of 1933, as
amended (the "Securities Act")) without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that such New
Notes are acquired in the ordinary course of such holder's business, such holder
has no arrangement or understanding with any person to participate in the
distribution of such New Notes and neither the holder nor any other person is
engaging in or intends to engage in a distribution of the New Notes. Any holder
who tenders in the Exchange Offer for the purpose of participating in a
distribution of New Notes cannot rely on such interpretation by the staff of the
Commission and must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale transaction.
Each broker-dealer that receives New Notes for its own account in exchange for
Old Notes where such Old Notes were acquired by such broker-dealer as a result
of market-making activities or other trading activities, must acknowledge that
it will deliver a prospectus in connection with any resale of such New Notes.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of the New Notes received in exchange for the Old
Notes acquired by the broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that it will make this
Prospectus and any amendment or supplement to this Prospectus available to any
broker-dealer for use in connection with any such resale for a period of 90 days
after the Exchange Date or, if earlier, until all participating broker-dealers
have so resold. See "Plan of Distribution."
The New Notes will evidence the same debt as the Old Notes and will be
entitled to the benefits of the Indenture (as defined). For a more complete
description of the terms of the New Notes, see "Description of The Notes."
The Old Notes were originally issued and sold on September 29, 1997 in an
offering of $120,000,000 aggregate principal amount of Old Notes (the
"Offering"). The Offering was exempt from registration under the Securities Act
under the exemptions provided by Rule 144A and Regulation S under the Securities
Act. Accordingly, the Old Notes may not be reoffered, resold or otherwise
pledged, hypothecated or transferred in the United States unless so registered
or unless an exemption from the registration requirements of the Securities Act
and applicable state securities laws is available.
Interest on the Notes will be payable semi-annually on April 1 and October
1 of each year, commencing April 1, 1998. The Notes will be redeemable at the
option of the Company, in whole or in part, at any time on or after October 1,
2001, at the redemption prices set forth herein, plus accrued and unpaid
interest, if any, from the date of redemption. In addition, the Company, at its
option, may redeem at any time prior to October 1, 2000, in the aggregate up to
35% of the original principal amount of the Notes at a redemption price equal to
110 3/4% of the aggregate principal amount thereof, plus accrued and unpaid
interest, if any, to the date of redemption, with the Net Proceeds (as defined)
of one or more Equity Offerings (as defined); provided, that after any such
redemption, at least 65% of the original
2
<PAGE> 6
aggregate principal amount of the Notes remains outstanding. Upon the occurrence
of a Change of Control (as defined) (i) the Company will have the option, at any
time prior to October 1, 2001, to redeem the Notes, in whole but not in part, at
a redemption price equal to 100% of the principal amount thereof plus the
Applicable Premium (as defined) and accrued and unpaid interest, if any, to the
date of redemption, and (ii) if the Company does not redeem the Notes pursuant
to clause (i) above or if such Change of Control occurs on or after October 1,
2001, each holder of the Notes may require the Company to repurchase such
holder's Notes at a purchase price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of repurchase.
The Notes and the Subsidiary Guaranties (as defined) will be subordinated
in right of payment to all existing and any future Senior Indebtedness (as
defined) and will rank pari passu in right of payment with all future senior
subordinated indebtedness and senior to all subordinated indebtedness of the
Company and the Subsidiary Guarantors, as applicable. The Notes will be jointly
and severally guaranteed on an unsecured senior subordinated basis
(collectively, the "Subsidiary Guaranties"), by each direct and indirect
Restricted Subsidiary (as defined) of the Company. Old Notes may be tendered
only in denominations of $1,000 principal amount and integral multiples thereof.
At September 30, 1997, the Notes and the Subsidiary Guaranties were subordinated
to approximately $30 million of Senior Indebtedness of the Company and the
Subsidiary Guarantors (not including approximately $30 million of additional
borrowing capacity under the Revolving Credit Facility which, if borrowed, would
have been Senior Indebtedness). The Indenture (as defined) permits the Company
and its subsidiaries to incur additional indebtedness, including secured and
unsecured Senior Indebtedness, subject to certain limitations. See "Description
of the Notes".
The Registrant has not entered into any arrangement or understanding with
any person to distribute the New Notes to be received in the Exchange Offer, and
to the best of the Registrant's information and belief, each person
participating in the Exchange Offer is acquiring the New Notes in its ordinary
course of business and has no arrangement or understanding with any person to
participate in the distribution of the New Notes to be received in the Exchange
Offer.
The Exchange Offer is not conditioned upon any minimum aggregate principal
amount of Old Notes being tendered for exchange. The Exchange Offer will expire
at 5:00 p.m., New York City time, on January , 1998, unless extended (as it
may be so extended, the "Expiration Date"), provided that the Exchange Offer
shall not be extended beyond 30 business days from the date of this Prospectus.
The date of acceptance for exchange of the Old Notes for the New Notes (the
"Exchange Date") will be the first business day following the Expiration Date.
Old Notes tendered pursuant to the Exchange Offer may be withdrawn at any time
prior to the Expiration Date; otherwise such tenders are irrevocable.
The Company will not receive any proceeds from the Exchange Offer. The
Company will pay all the expenses incident to the Exchange Offer. In the event
the Company terminates the Exchange Offer and does not accept for exchange any
Old Notes, the Company will promptly return the Old Notes to the holders
thereof. See "The Exchange Offer".
There is no existing trading market for the New Notes, and there can be no
assurance regarding the future development of a market for the New Notes. The
Initial Purchasers (as defined) have advised the Company that they currently
intend to make a market in the New Notes. The Initial Purchasers are not
obligated to do so, however, and any market-making with respect to the New Notes
may be discontinued at any time without notice. Accordingly, no assurance can be
given that an active public or other market will develop for the New Notes or as
to the liquidity of or the trading market for the New Notes. The Company does
not intend to apply for listing of the New Notes on any securities exchange or
in any automated quotation system.
3
<PAGE> 7
AVAILABLE INFORMATION
The Company has filed with the Commission in Washington, D.C. a
Registration Statement on Form S-4 under the Securities Act with respect to the
Exchange Offer. This Prospectus, which is part of the Registration Statement,
does not contain all of the information set forth in the Registration Statement
and the exhibits and schedules thereto. For further information with respect to
the Company and the Exchange Offer, reference is made to such Registration
Statement and the exhibits and schedules filed as part thereof. The Registration
Statement and the exhibits and schedules thereto filed with the Commission may
be inspected without charge at the Public Reference Section of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and
will also be available for inspection and copying at the regional offices of the
Commission located at Seven World Trade Center, 13th Floor, New York, New York
10048, and the Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of all or any portion of the Registration Statement may
be obtained from the Public Reference Section of the Commission upon payment of
certain prescribed fees. Electronic registration statements made through the
Electronic Data Gathering, Analysis, and Retrieval system are publicly available
through the Commission's Web site (http://www.sec.gov), which is maintained by
the Commission and which contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission.
The Company is subject to the information requirements of the Exchange Act,
and in accordance therewith, files reports, proxy statements and other
information with the Commission. The Company's Common Stock is traded on the
Nasdaq National Market under the symbol RMOC. The Company's reports, proxy
statements and other information concerning the Company can be inspected and
copied at the offices of the Nasdaq National Market, 1735 K Street N.W.,
Washington, D.C. 20006.
The Company has agreed that, if at any time while the Old Notes are
'restricted securities' within the meaning of the Securities Act and the Company
is not subject to the reporting requirements of the Exchange Act, the Company
will furnish to holders of the Old Notes and to prospective purchasers
designated by such holders the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act to permit compliance with Rule 144A in
connection with resales of the Notes.
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE REGISTRANT ACCEPT
SURRENDERS FOR EXCHANGE FROM, HOLDERS OF OLD NOTES IN ANY JURISDICTION IN WHICH
THE EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE
SECURITIES LAWS OF SUCH JURISDICTION.
4
<PAGE> 8
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be read
in conjunction with, the more detailed information and financial statements,
including the notes thereto, appearing elsewhere in this Prospectus. Certain oil
and gas related terms are defined under "Certain Definitions." Unless the
context indicates otherwise, references in this Prospectus to "RMOC" or the
"Company" are to Rutherford-Moran Oil Corporation, a Delaware corporation, and
its subsidiaries.
THE COMPANY
The Company is a United States independent exploration and production
company engaged in the acquisition, exploration, development and production of
oil and gas properties in Southeast Asia. Currently the Company's exploration
and development activities are conducted entirely in the Gulf of Thailand
through its subsidiary, Thai Romo Limited ("Thai Romo"), and its affiliate,
B8/32 Partners, Limited ("B8/32 Partners"), each of which are companies existing
under the laws of Thailand. The Company, through Thai Romo and B8/32 Partners,
owns a 46.34% interest in Block B8/32 (sometimes referred to as the "Block" or
the "Concession"), which currently covers approximately 750,000 acres in the
central portion of the Gulf of Thailand. Subsidiaries or affiliates of Pogo
Producing Company ("Pogo"), the operator of the Concession, and Palang Sophon
Limited ("Palang"), the Company's local partner which is an affiliate of the
Sophonpanich Group (a major Thai holding company with interests in the banking,
hotel, real estate, petrochemical and other industries), are the other
concessionaires (together with the Company, the "Concessionaires") in the Block.
The Company also reviews from time to time additional exploration opportunities
in other areas of Southeast Asia.
The Company has experienced a rapid growth in proven reserves since
drilling its first well in 1992. Through June 30, 1997, 52 of 62 wells drilled
in the Block have been successful and are capable of commercial production. The
successful drilling program has resulted in the discovery and subsequent
development of the Tantawan and Benchamas Fields. As of July 1, 1997, the
Company had net proven reserves of 327 Bcfe, 50% of which were in the Tantawan
Field and 50% of which were in the Benchamas Field. This estimate only includes
proven reserves with respect to 2 of the 12 successful wells drilled in the
first half of 1997. In addition, the Company has made additional discoveries in
the Pakakrong and Maliwan areas which have the potential for significant
additional proven reserves. Production from the Tantawan Field commenced in
February 1997 and through June 30, 1997 has averaged 79 MMcf and 5,050 Bbls per
day (36.6 MMcf and 2,340 Bbls per day net to the Company's working interest).
Production from the Benchamas Field is expected to commence in the third quarter
of 1999.
The Concessionaires have entered into a 30-year take-or-pay Gas Sales
Agreement (the "GSA") with the Petroleum Authority of Thailand ("PTT") to sell
natural gas from the Tantawan Field. PTT is an agency of the Kingdom of
Thailand, which has "Baa1" and "BBB" long-term sovereign debt ratings from
Moody's Investors Services, Inc. and Standard & Poor's Ratings Service,
respectively. The GSA was amended in November, 1997 to incorporate production
from the Benchamas Field.
In early July, the Company had its first oil lifting from the Tantawan
Field and sold 278,000 barrels of oil pursuant to a Memorandum of Understanding
("MOU") with PTT. In October, the Company and the other Concessionaires received
permission from the Thai Department of Mineral Resources to export crude oil
produced from the Block and sold its second oil lifting for U.S. dollars to a
third party purchaser for export. The Company expects that the Concessionaires
will continue to sell their crude oil for U.S. dollars to a number of purchasers
at market prices. As a result, the Company expects that the MOU with PTT will be
terminated.
The Company believes that the Block is a unique exploration and development
opportunity because of its potential for very substantial oil and gas reserves,
its close proximity to existing production and transportation infrastructure,
the Company's existing long-term take-or-pay natural gas sales agreement, and
Thailand's growing energy demand and favorable business climate.
5
<PAGE> 9
BUSINESS STRATEGY
The Company's business strategy is to increase reserves, production,
earnings and cash flow through exploration, development and acquisition of
assets primarily concentrated in Southeast Asia. The Company implements this
strategy by (i) conducting an active exploration and development drilling
program, (ii) utilizing advanced geophysical technology and in-house expertise,
(iii) developing strong local government and partner working relationships, (iv)
maintaining a sound financial structure, including strict controls on overhead
and operating costs, and (v) focusing on attractive geological regions.
Active Exploration and Development Drilling Program. The Company's
operating strategy incorporates an aggressive program of exploration and
development drilling. RMOC's 1997 capital budget of $108 million included
approximately $36 million to drill 11 development wells (5.1 wells net to RMOC)
in the Tantawan Field and approximately 21 exploration wells (9.7 wells net to
RMOC) across all areas within the Block. The Company's 1998 capital budget is
estimated to be in the range of $110 million to $120 million, of which
approximately 70% is budgeted for production facilities, primarily for the
Benchamas Field. The Company currently produces oil and gas in the Tantawan
Field from two producing platforms into a floating production, storage and
offloading vessel ("FPSO"), and expects to produce from two additional platforms
by the end of 1997. Since the commencement of drilling operations in the Block
in 1992 through June 30, 1997, the Concessionaires have drilled 52 commercial
wells (21.5 net to RMOC), resulting in a success rate of approximately 84%. The
Company also believes that it has an extensive inventory of attractive
exploration prospects.
Advanced Technology and In-house Technical Expertise. The Company believes
that its drilling success has significantly benefited from the technical
expertise of its geophysical and geologic staff and their effective analysis and
interpretation of advanced 3-D seismic information. RMOC's staff conducts
extensive in-house 3-D seismic analysis in order to identify prospects and
optimize exploration and development drilling locations in the Block. To date,
the Company has acquired 3-D seismic surveys covering approximately 860 square
miles in the Block. The Company's efforts also utilize advanced drilling and
completion techniques in order to increase the ultimate recovery of oil and gas
and reduce costs.
Local Government and Partner Relationships. The Company believes that the
strong relationships it has developed with the Thai government, Palang (its
local Thai partner) and Pogo, the operator of the Concession, are key advantages
in implementing the other components of its strategy. RMOC expects to emphasize
similar local government and partner relationships in any new potential areas of
operations.
Financial Strategy. The Company's financial strategy focuses on maintaining
a sound capital structure and controlling overhead and operating costs,
resulting in efficiencies which increase margins and reduce finding and
development costs. The Company's financial management initiatives include its
June 1996 initial public offering which raised $97 million in net proceeds used
to repay the Company's indebtedness, and the issuance of the Old Notes, which
extended the Company's debt maturities, diversified its capital base and
improved the Company's ability to exploit additional opportunities in the Block.
RMOC's management team also has an approximate 75% equity ownership position in
the Company, thus creating a significant incentive for success.
Attractive Geological Regions. RMOC obtained its position in the Block
after identifying Thailand as an attractive area for oil and gas operations. The
characteristics the Company considers when evaluating potentially attractive
opportunities include: (i) large reserve potential, (ii) manageable geologic
risk, (iii) proximity to existing infrastructure, (iv) growing local demand for
petroleum products, and (v) favorable overall government and business climate.
See "Business and Properties."
6
<PAGE> 10
OIL AND GAS ACTIVITIES
The Company has identified a number of exploration and development
prospects within Block B8/32, which include the Tantawan and Benchamas Fields
and the Pakakrong and Maliwan areas. On May 24, 1997, the Concessionaires
received approval for a three-year extension of the exploration period for the
Block until July 31, 2000.
Tantawan Field. Through June 30, 1997, the Company has participated in
drilling a total of 18 exploration wells and 23 development wells in the
Tantawan Field, all but one of which have encountered hydrocarbons. Of the 40
wells that encountered hydrocarbons, 36 are deemed capable of commercial flow
rates. All of these successful wells have been drilled in roughly the southern
third of the Tantawan Field, and have encountered an average of 170 feet of net
hydrocarbon pay. Production commenced in February 1997, and through June 30,
1997, has averaged 79 MMcf and 5,050 Bbls per day (36.6 MMcf and 2,340 Bbls net
to the Company's working interest). As of July 1, 1997, net proven reserves for
the Tantawan Field were 162 Bcfe. The Company expects to drill 8 additional
wells in the Tantawan Field in the second half of 1997.
Benchamas Field. Through June 30, 1997, the Company has participated in
drilling a total of 13 exploration wells in the Benchamas Field, all of which
were hydrocarbon bearing and 12 of which were considered to be commercially
viable. The wells encountered an average of 225 feet of net hydrocarbon pay. As
of July 1, 1997, net proven reserves for the Benchamas Field were 165 Bcfe.
Additional delineation drilling is currently underway in this Field and the
Company expects to drill approximately 6 additional wells in the Benchamas Field
in the second half of 1997. The Company expects to conduct an active program of
development drilling in the Benchamas Field in 1998.
In January 1997, the Concessionaires submitted to the Thai government a
plan of development and applied for approval to produce oil and gas from the
Benchamas Field and part of the Pakakrong area. In June 1997, the Company
received from the Ministry of Industry a production license covering
approximately 101,000 acres in these areas. The Company believes this is the
largest production license area ever awarded in the Gulf of Thailand. The
initial development plan for the Benchamas Field includes the installation of
three wellhead platforms and a central processing facility with a daily capacity
of 150 Mmcf of natural gas, 25 Mbbls of oil and condensate and 25 Mbbls of
water. The natural gas will flow into an existing 36-inch pipeline owned by PTT.
The oil and condensate will flow from the central processing platform to a
floating storage and offloading vessel ("FSO") to be moored in the field.
Pakakrong Area. Through June 30, 1997, the Company has participated in
drilling two wells in the Pakakrong area located southwest of the Benchamas
Field, both of which have encountered hydrocarbons. These wells have found an
average of 79 feet of net hydrocarbon pay. The Pakakrong discovery is
significant in that hydrocarbons were encountered and tested at depths
considerably shallower than those found to date by the Concessionaires elsewhere
in the Block. Additional delineation drilling is needed before proven reserves
at Pakakrong can be estimated. The Company expects that Pakakrong production
will flow to the Benchamas central processing facility.
Maliwan Area. Through June 30, 1997, two successful exploration wells have
been drilled in the Maliwan area, located between the Tantawan and Benchamas
Fields. The first well encountered 110 feet of net hydrocarbon pay and the
second encountered 297 feet of net hydrocarbon pay. Additional exploration and
delineation drilling, as well as a complete geological and geophysical
assessment, will be required before proven reserves can be evaluated and
development plans formulated. In November 1997, the Concessionaires received
from the Ministry of Industry a production license covering approximately 91,000
acres in the Maliwan area. The Company also expects to have an active program of
exploratory drilling in the Maliwan area in 1998.
7
<PAGE> 11
Recent Developments. Since July 1, 1997 and through September 30, 1997, the
Company has participated in drilling 8 additional exploration wells, all but one
of which were considered to be commercially viable. Five of the successful
exploration wells were drilled in the Benchamas Field. The first well
encountered 218 feet of net hydrocarbon pay. The second well encountered 71 feet
of net hydrocarbon pay. The third well encountered 268 feet of net hydrocarbon
pay and the fourth well encountered 125 feet of net hydrocarbon pay. The fifth
well was the first well drilled utilizing "slimhole" drilling and completion
technology which the Company believes will greatly reduce its drilling costs.
The fifth well encountered 165 feet of net hydrocarbon pay. Two of the
successful wells were drilled in the Maliwan area. The first well encountered 69
feet of net hydrocarbon pay and the second well encountered 185 feet of net
hydrocarbon pay. The one well considered not to be commercially viable was
drilled in the northern portion of the Tantawan Field.
Other Activities. In the future, the Company intends to evaluate other
prospects in the Block, including the Pattalung and Yungthong areas, as well as
capitalize on the expertise developed through its experience in the Block by
identifying and pursuing additional oil and gas exploration, development and
acquisition opportunities in the Gulf of Thailand and other areas in Southeast
Asia.
OVERVIEW OF THE GULF OF THAILAND AND BLOCK B8/32
The Kingdom of Thailand has significant oil and gas production and
reserves, centered primarily in the Gulf of Thailand. According to the Thai
Department of Mineral Resources, at December 31, 1996, Thailand's remaining
proven, probable and possible reserves were estimated at approximately 25 Tcfe
and 1996 production averaged 1.65 Bcfe per day.
Block B8/32 is an offshore acreage position situated within the Pattani
Basin of the Gulf of Thailand, which has seen 10 major field discoveries over
the past 24 years. Water depths in the Block range from 200 to 250 feet, which
is similar to the shallow waters in the Gulf of Mexico.
The surface area of Block B8/32 currently covers an area of approximately
750,000 acres, which, in comparison to the U.S. Gulf of Mexico, equates to an
acreage position of approximately 150 Federal Offshore Louisiana Blocks. By Thai
law, the Concessionaires were required to relinquish approximately 590,000 acres
on August 1, 1997, which represented approximately 45% of the 1.3 million acres
not then subject to a production license or for which a production license
application was not then pending. The Company believes that the Concessionaires
did not lose any attractive exploration acreage in the Block as a result of the
relinquishment. Management believes the remaining 750,000 acres in the Block
contain significant unexplored areas which will provide the Company with
additional exploration opportunities and potential reserve growth.
The Company originally owned a 31.67% interest in the Block. In March 1995,
RMOC purchased its proportionate share of the interest of Maersk Oil (Thailand),
Limited ("MOTL"), a wholly-owned subsidiary of Maersk Olie og Gas AS of
Copenhagen, Denmark, in the Tantawan Field. This $5.9 million transaction
increased the Company's interest in the Tantawan Field from 31.67% to 46.34%.
On December 19, 1996, RMOC exercised its preferential right to purchase
46.34% of the outstanding shares of MOTL for $28.6 million, which included
approximately $1.6 million in satisfaction of outstanding debt (the "MOTL
Acquisition"). The remaining 53.66% of MOTL stock was purchased by Pogo and
Palang. Following the purchase, which closed on March 3, 1997, MOTL changed its
name to B8/32 Partners, Limited. Through this acquisition, RMOC effectively
increased its interest in the remainder of the Block outside the Tantawan Field
to 46.34% and increased its proven reserves as of January 1, 1997 by
approximately 50 Bcfe.
8
<PAGE> 12
RUTHERFORD-MORAN OIL CORPORATION
CORPORATE ORGANIZATION
Rutherford-Moran
Oil Corporation
|
|
--------------------------------------------------------
| 100% | 100% | 100%
Rutherford-Moran Thai Romo Thai Tex Insurance
Exploration Company Holdings, Inc. Company, Inc.*
| 57% 43% | |
----------------------------- |
| |
Thai Romo |
Limited |
|
| 46.34%
B8/32 Partners, Ltd.
* Captive insurance company.
9
<PAGE> 13
THE INITIAL OFFERING
On September 29, 1997, the Company issued $120 million principal amount of
Old Notes. The Old Notes were sold pursuant to exemptions from, or in
transactions not subject to, the registration requirements of the Securities Act
and applicable state securities laws. Credit Suisse First Boston Corporation,
Bear, Stearns & Co. Inc., Chase Securities Inc. and NationsBanc Capital Markets,
Inc. (collectively the "Initial Purchasers"), as a condition to their purchase
of the Old Notes, required that the Company agree to commence the Exchange Offer
following the offering of the Old Notes. The New Notes will evidence the same
class of debt as the Old Notes and will be issued pursuant to, and entitled to
the benefits of, the Indenture.
THE EXCHANGE OFFER
Securities Offered......... Up to $120,000,000 aggregate principal amount of
10 3/4% Senior Subordinated Notes due 2004 of the
Company (the "New Notes," and collectively with the
Old Notes, the "Notes"). The terms of the New Notes
and the Old Notes are identical in all material
respects, except for certain transfer restrictions
relating to the Old Notes that will not apply to
the New Notes. See "Description of the Notes."
The Exchange Offer......... The New Notes are being offered in exchange for a
like aggregate principal amount of Old Notes. The
issuance of the New Notes is intended to satisfy
obligations of the Company contained in the
Registration Rights Agreement, dated September 29,
1997, among the Company, the Subsidiary Guarantors
(as defined) and the Initial Purchasers (the
"Registration Rights Agreement"). See "The Exchange
Offer" for a description of the procedures for
tendering Old Notes.
Tenders, Expiration Date;
Withdrawal............... The Exchange Offer will expire at 5:00 p.m., New
York City time, on January , 1998, or such later
date and time to which it is extended, provided
that the Exchange Offer will not be extended beyond
30 business days from the date of this Prospectus.
Tenders of Old Notes pursuant to the Exchange Offer
may be withdrawn and retendered at any time prior
to the Expiration Date. Any Old Notes not accepted
for exchange for any reason will be returned
without expense to the tendering holder as promptly
as practicable after the expiration or termination
of the Exchange Offer.
Interest on the Notes...... The New Notes will have interest payable
semi-annually on April 1 and October 1 of each
year, commencing April 1, 1998. Holders of New
Notes of record on March 15, 1998 will receive
interest on April 1, 1998 from the date of issuance
of the New Notes, plus an amount equal to the
accrued interest on the Old Notes from the date of
issuance of the Old Notes, September 29, 1997, to
the date of exchange thereof. Consequently,
assuming the Exchange Offer is consummated prior to
the record date in respect of the April 1, 1998
interest payment for the Old Notes, holders who
exchange their Old Notes for New Notes will receive
the same interest payment on April 1, 1998 that
they would have received had they not accepted the
Exchange Offer. Interest on the Old Notes accepted
for exchange will cease to accrue upon issuance of
the New Notes. See "The Exchange Offer -- Interest
on the Exchange Notes."
10
<PAGE> 14
Procedures for Tendering
Old Notes.................. Each holder of Old Notes wishing to accept the
Exchange Offer must complete, sign and date the
Letter of Transmittal, or a facsimile thereof, in
accordance with the instructions contained herein
and therein, and mail or otherwise deliver such
Letter of Transmittal, or such facsimile, prior to
the Expiration Date (as defined) together with the
Old Notes to be exchanged and any other required
documentation to the Exchange Agent at the address
set forth herein and therein or comply with the
guaranteed delivery procedures described below. See
"The Exchange Offer -- Procedures for Tendering."
Special Procedures for
Beneficial Holders....... Any beneficial holder whose Old Notes are
registered in the name of a broker, dealer,
commercial bank, trust company or other nominee and
who wishes to tender in the Exchange Offer should
contact such registered holder promptly and
instruct such registered holder to tender on the
beneficial holder's behalf. If such beneficial
holder wishes to tender directly, such beneficial
holder must, prior to completing and executing the
Letter of Transmittal and delivering the Old Notes,
either make appropriate arrangements to register
ownership of the Old Notes in such holder's name or
obtain a properly completed bond power from the
registered holder. The transfer of record ownership
may take considerable time. See "The Exchange
Offer -- Procedures for Tendering."
Guaranteed Delivery
Procedures............... Holders of Old Notes who wish to tender their Old
Notes and whose Old Notes are not immediately
available or who cannot deliver their Old Notes and
a properly completed Letter of Transmittal or any
other documents required by the Letter of
Transmittal to the Exchange Agent prior to the
Expiration Date, or who cannot complete the
procedure for book-entry transfer of Old Notes to
the Exchange Agent's account with DTC prior to the
Expiration Date, may tender their Old Notes
according to the guaranteed delivery procedures set
forth in "The Exchange Offer -- Guaranteed Delivery
Procedures."
Federal Income Tax
Considerations........... The Exchange Offer will not result in any income,
gain or loss to the Holders or the Company for
federal income tax purposes. See "Certain Federal
Income Tax Considerations."
Use of Proceeds............ There will be no proceeds to the Company from the
exchange of New Notes for the Old Notes pursuant to
the Exchange Offer.
Exchange Agent............. Bank of Montreal Trust Company, the Trustee under
the Indenture, is serving as exchange agent (the
"Exchange Agent") in connection with the Exchange
Offer.
Shelf Registration
Statement.................. Under certain circumstances described in the
Registration Rights Agreement, certain holders of
Notes (including holders who are not permitted to
participate in the Exchange Offer or who may not
freely resell New Notes received in the Exchange
Offer) may require the Company and the Subsidiary
Guarantors to file, and use their best efforts to
cause to become effective, a shelf registration
statement under the Securities Act, which would
cover resales of Notes by such
11
<PAGE> 15
holders (the "Shelf Registration Statement"). See
"The Exchange Offer" and "Registration Rights").
Conditions to the Exchange
Offer.................... The Exchange Offer is not conditioned on any
minimum principal amount of Old Notes being
tendered for exchange. The Exchange Offer is
subject to certain other customary conditions, each
of which may be waived by the Company. See "The
Exchange Offer -- Conditions".
CONSEQUENCES OF EXCHANGING OR FAILURE TO EXCHANGE OLD NOTES
PURSUANT TO THE EXCHANGE OFFER
Generally, holders of Old Notes (other than any holder who is an
"affiliate" of the Registrant within the meaning of Rule 405 under the
Securities Act) that exchange their Old Notes for New Notes pursuant to the
Exchange Offer may offer their New Notes for resale, resell their New Notes, and
otherwise transfer their New Notes without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided such New Notes
are acquired in the ordinary course of the holders' business, such holders have
no arrangement with any person to participate in a distribution of such New
Notes, and neither the holder nor any other person is engaging in or intends to
engage in a distribution of the New Notes. Each broker-dealer that receives New
Notes for its own account in exchange for Old Notes where such Notes were
acquired by such broker-dealer as a result of market-making activities or other
trading activities must acknowledge that it will deliver a prospectus in
connection with any resale of its New Notes. See "Plan of Distribution." To
comply with the securities laws of certain jurisdictions, it may be necessary to
qualify for sale or register the New Notes prior to offering or selling such New
Notes. The Company is required, under the Registration Rights Agreement, to
register the New Notes in any jurisdiction requested by the holders, subject to
certain limitations. Upon consummation of the Exchange Offer, holders that were
not prohibited from participating in the Exchange Offer and did not tender their
Old Notes will not have any registration rights under the Registration Rights
Agreement with respect to such nontendered Old Notes, and accordingly, such Old
Notes will continue to be subject to the restrictions on transfer contained in
the legend on the Old Notes. In general, Old Notes may not be offered or sold,
unless registered under the Securities Act and applicable state securities laws.
See "The Exchange Offer -- Consequences of Failure to Exchange."
12
<PAGE> 16
SUMMARY DESCRIPTION OF THE NOTES
Securities................. $120 million aggregate principal amount of 10 3/4%
Senior Subordinated Notes due 2004.
Maturity Date.............. October 1, 2004.
Interest Escrow............ The Indenture dated September 29, 1997 (the
"Indenture") among the Company, the Subsidiary
Guarantors and Bank of Montreal Trust Company, as
Trustee (the "Trustee") provides that the Company
will purchase and pledge to the Trustee the Pledged
Securities in such amounts as will be sufficient,
upon receipt of scheduled interest and principal
payments thereon, to provide for payment in full
when due of the first four scheduled interest
payments on the Notes.
Interest Payment Dates..... April 1 and October 1 of each year, commencing
April 1, 1998.
Optional Redemption........ At any time on or after October 1, 2001, the Notes
will be redeemable at the option of the Company, in
whole or in part, at the redemption prices set
forth herein plus accrued and unpaid interest, if
any, to the date of redemption. The Notes will not
be redeemable at the option of the Company prior to
October 1, 2001, except (i) that until October 1,
2000, the Company may redeem up to 35% of the
original aggregate principal amount of the Notes
with the net proceeds of one or more Equity
Offerings at a redemption price equal to 110 3/4%
of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of redemption;
provided that, after any such redemption, at least
65% of the original aggregate principal amount of
the Notes remains outstanding and (ii) upon a
Change of Control, as described below. See
"Description of the Notes -- Optional Redemption."
Change of Control.......... Upon a Change of Control, (i) the Company will have
the option, at any time prior to October 1, 2001,
to redeem the Notes, in whole but not in part, at a
redemption price equal to 100% of the principal
amount thereof plus the Applicable Premium and
accrued and unpaid interest, if any, to the date of
redemption, and (ii) if the Company does not redeem
the Notes pursuant to clause (i) above or if such
Change of Control occurs on or after October 1,
2001, each Holder of the Notes may require the
Company to repurchase such Holder's Notes at a
purchase price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued
and unpaid interest, if any, to the date of
repurchase. See "Risk Factors -- "Limitation on
Purchase of Notes Upon a Change of Control" and
"Description of the Notes -- Optional Redemption"
and "-- Change of Control."
Subsidiary Guarantees...... The Notes will be jointly and severally guaranteed
on an unsecured senior subordinated basis
(collectively, the "Subsidiary Guaranties"), by
each direct and indirect Restricted Subsidiary (as
defined) existing on the closing date of the
Exchange Offer (the "Closing Date") or formed or
acquired thereafter (collectively the "Subsidiary
Guarantors"). The Subsidiary Guarantors' liability
under the Subsidiary Guaranties will be limited as
described herein and the Subsidiary Guaranties will
be automatically released in connection with
certain
13
<PAGE> 17
asset sales and dispositions. See "Description of
the Notes -- Guaranties."
Ranking.................... The Notes and the Subsidiary Guarantees will be
general, unsecured obligations of the Company and
the Subsidiary Guarantors, as applicable. The Notes
and the Subsidiary Guaranties will be subordinated
in right of payment to all existing and any future
Senior Indebtedness and will rank pari passu in
right of payment with all future senior
subordinated indebtedness and senior to all
subordinated indebtedness of the Company and the
Subsidiary Guarantors, as applicable. Certain of
the Company's subsidiaries (including Thai Romo)
are parties to the Revolving Credit Facility and
all obligations under the Revolving Credit Facility
are secured by a lien on the capital stock of
certain of the subsidiaries (including Thai Romo).
As of September 30, 1997, the aggregate principal
amount of Senior Indebtedness of the Company and
the Subsidiary Guarantors was approximately $30
million (not including approximately $30 million of
additional borrowing capacity under the Revolving
Credit Facility which, if borrowed, would have been
Senior Indebtedness). The Indenture governing the
Notes permits the Company and its subsidiaries
(including the Subsidiary Guarantors) to incur
additional indebtedness, including secured and
unsecured Senior Indebtedness, subject to certain
limitations. See "Description of the
Notes -- Ranking and Subordination."
Certain Covenants.......... The Indenture contains certain covenants that,
among other things, limit the ability of the
Company and its Restricted Subsidiaries (i) to pay
dividends and make other Restricted Payments (as
defined) or investments, (ii) to incur additional
indebtedness, (iii) to enter into transactions with
Affiliates (as defined), (iv) to merge or
consolidate with any other entity, (v) to transfer
all or substantially all of their assets, and (vi)
to create certain liens. All of these limitations
are subject to a number of important
qualifications. See "Description of the
Notes -- Certain Covenants."
Exchange Offer;
Registration Rights........ Pursuant to the Registration Rights Agreement the
Company and the Subsidiary Guarantors have agreed
to file a registration statement (the "Exchange
Offer Registration Statement"). The Registration
Statement of which this Prospectus is a part
constitutes the Exchange Offer Registration
Statement referred to therein. If applicable law or
interpretations of the Commission's staff do not
permit the Company and the Subsidiary Guarantors to
effect the Exchange Offer, or if certain holders of
Notes are not permitted to participate in, or do
not receive the benefit of, the Exchange Offer, the
Company and the Subsidiary Guarantors will use
their best efforts to cause to become effective a
shelf registration statement with respect to the
resale of the Notes and to keep such shelf
registration effective for two years or such
shorter period ending when all of the Notes have
been sold under such shelf registration statement.
The Notes are subject to the payment of additional
interest under certain circumstances if the Company
is not in compliance with its obligations under the
Registration Rights Agreement. See "Description of
the Notes -- Exchange Offer; Registration Rights."
14
<PAGE> 18
Use of Proceeds............ The Company will not receive any proceeds from the
Exchange Offer. The Net Proceeds of the Offering
were used to repay $93 million of outstanding
indebtedness under the Company's Revolving Credit
Facility and a short-term facility ("Credit
Agreement") from one of its lenders under its
Revolving Credit Facility. The remaining proceeds
were used to purchase a portfolio of U.S.
Government Obligations (as defined) of
approximately $24 million (the "Pledged
Securities"), the scheduled interest and principal
payments on which are in an amount sufficient to
provide for payment in full when due of the first
four scheduled interest payments on the Notes.
RISK FACTORS
Prospective participants in the Exchange Offer should carefully consider
all of the information set forth in this Prospectus and, in particular, should
evaluate the specific factors set forth under "Risk Factors."
15
<PAGE> 19
SUMMARY OIL AND GAS RESERVE AND OPERATING DATA
The following table includes information with respect to the Company's
proven oil (including condensate and crude oil) and gas reserves as estimated by
Ryder Scott Company, independent petroleum engineers ("Ryder Scott"). In
preparing such estimates as of January 1, 1997, Ryder Scott used $24.56 per Bbl
of oil and $2.09 per Mcf of gas, the prices that the Company estimated that it
would have received at January 1, 1997 had the Tantawan and Benchamas Fields
been producing at such time.
In preparing the July 1, 1997 reserve estimate, Ryder Scott effected a
roll-forward from the January 1, 1997 proven reserve estimates by adjusting for
the MOTL Acquisition and by adding proven reserves with respect to two
additional wells drilled early in 1997. This July 1, 1997 estimate did not
consider the other 10 successful wells drilled during the first half of 1997 by
the Concessionaires. In preparing the July 1, 1997 estimates, at the Company's
request, Ryder Scott used $15.92 per Bbl of oil for volumes produced in 1997 and
1998 to reflect the crude oil price swaps then in effect. Beginning in 1999, an
oil price of $18.72 per Bbl of oil was used. The gas price of $2.13 per Mcf of
gas was calculated in accordance with the terms of the Company's GSA with PTT
and giving effect to the July 2, 1997 devaluation of the Baht (and the resulting
closing exchange rate for the Baht on such date). The roll-forward reflects
production volumes which Ryder Scott estimated at January 1, 1997 for the first
half of 1997. In preparing the July 1, 1997 roll-forward, the Company provided
Ryder Scott with updated estimates for operating expenses and capital
expenditures.
For additional information relating to the Company's reserves, see "Risk
Factors -- Uncertainties in Estimating Reserves and Future Net Cash Flows,"
"Business and Properties -- Reserves," and Notes to Consolidated Financial
Statements.
<TABLE>
<CAPTION>
JANUARY 1, JULY 1,
-------------------------------- --------
1995 1996 1997 1997
-------- ---------- -------- --------
<S> <C> <C> <C> <C>
TOTAL NET PROVEN RESERVES
Oil and condensate (Mbbls)...................... 7,674 18,997 21,332 26,700
Natural gas (MMcf).............................. 56,739 131,607 144,998 166,861
Natural gas equivalent (MMcfe).................. 102,783 245,589 272,990 327,061
PRESENT VALUE (DISCOUNTED AT 10%) OF ESTIMATED
FUTURE NET CASH FLOW, BEFORE INCOME TAXES (IN
THOUSANDS)(a)................................... $ 52,112 $131,631 $174,195 $190,978
</TABLE>
<TABLE>
<CAPTION>
QUARTER ENDED
-----------------------------------
MARCH 31, 1997 SEPTEMBER 30, 1997
-------------- ------------------
<S> <C> <C>
PRODUCTION DATA (NET TO THE COMPANY'S WORKING INTEREST)
Natural Gas
MMcf per day........................................... 26.49 42.87
Price per Mcf(b)....................................... $ 1.73 $ 1.88
Oil and Condensate
Bbls per day........................................... 1,678 2,565
Price per Bbl(c)....................................... $ -- $15.92
</TABLE>
- ---------------
(a) The January 1, 1997 Present Value of Proved Reserves was adjusted downward
from the value calculated by Ryder Scott for financial reporting purposes to
reflect the price impact of crude oil hedging.
(b) The gas price received for the quarter ended March 31, 1997, was impacted by
the receipt of 75% of the contract price for gas purchased by PTT from
startup until March 15, 1997, when the Concessionaires passed the production
run-in test.
(c) The Company's net realized oil price per Bbl reflects the impact of oil
pricing hedge contracts in effect.
16
<PAGE> 20
SUMMARY FINANCIAL DATA
The summary financial data set forth below for the Company have been
derived from the Company's audited and unaudited financial statements and notes
thereto contained elsewhere herein. All data with respect to 1997 reflects the
effects of the Company's purchase of a 46.34% interest in MOTL on March 3, 1997.
The financial data should be read in conjunction with the more detailed
financial statements and related notes and "Management's Discussion and Analysis
of Financial Condition and Results of Operations" included elsewhere in this
Prospectus.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
-------------------------- -------------------------
1994 1995 1996 1996 1997
------ ------ -------- ----------- -----------
(UNAUDITED) (UNAUDITED)
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Total revenues............................. $ 6 $ 5 $ 170 $ 158 $25,946
----- ----- ------- ------- -------
Expenses:
Operating expense..................... -- -- -- -- 17,100
Interest expense...................... 107 190 806 643 4,620
Depreciation, depletion and
amortization........................ 2 5 29 20 13,232
General and administrative............ 290 322 2,268 1,045 3,993
Net gain on futures contracts......... -- -- -- -- (275)
Foreign currency exchange loss, net... -- -- -- -- 1,850
----- ----- ------- ------- -------
Total expenses................... 399 517 3,103 1,708 40,520
----- ----- ------- ------- -------
Loss before taxes.......................... (393) (512) (2,933) (1,550) (14,574)
Income tax benefit (expense)............... -- -- (1,391) (1,769) 5,584
----- ----- ------- ------- -------
Net loss................................. $(393) $(512) $(4,324) $(3,319) $(8,990)
===== ===== ======= ======= =======
</TABLE>
<TABLE>
<CAPTION>
AT DECEMBER 31, AT SEPTEMBER 30,
------------------ ----------------
1995 1996 1997
------- -------- ----------------
(UNAUDITED)
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
BALANCE SHEET DATA (END OF PERIOD):
Oil and gas properties, at cost...................... $55,951 $123,300 $217,699
Total assets......................................... 67,669 129,825 258,046
Long-term debt, including current maturities......... 34,385 22,842 149,996
Stockholders' equity................................. 23,269 100,625 91,866
</TABLE>
17
<PAGE> 21
RISK FACTORS
An investment in the New Notes offered hereby involves a high degree of
risk. Prospective participants in the Exchange Offer should carefully consider
all of the information provided in this Prospectus in connection with the
Exchange Offer. This Prospectus contains forward-looking statements which
involve risks and uncertainties. The Company's actual results may differ
significantly from the results in the forward-looking statements. Factors that
might cause such differences include but are not limited to, the risk factors
set out below.
SUBSTANTIAL CAPITAL REQUIREMENTS
The Company makes, and will continue to make, substantial capital
expenditures for the acquisition, exploration, development and production of oil
and natural gas reserves. Since its inception, the Company has financed these
expenditures primarily through a combination of equity infusions by its
principal stockholders (primarily Messrs. Rutherford and Moran), bank and
stockholder loans, and the sale of common stock. The Company expects to make
approximately $125 million in capital expenditures in 1997, of which $28.6
million was used for the MOTL Acquisition and the balance of which is being
expended primarily to develop the Tantawan and Benchamas Fields. The Company
currently expects capital expenditures for 1998 to be in the range of $110
million to $120 million, of which approximately 70% is budgeted for production
facilities primarily for the Benchamas Field. Over the next 24 months, the
Company expects to expend approximately $114 million to fabricate production
facilities at Benchamas Field. The Benchamas expenditures account for a
substantial portion of the above estimates for 1997 and 1998. The Company also
expects to expend additional monies over the next several years to support
additional exploration and development activities in the Block. The Company has
been funding and expects to continue to fund these activities during the
remainder of 1997 with net cash flow from operations and additional bank
borrowings under the Revolving Credit Facility, assuming the Revolving Credit
Facility is amended as described in "Management's Discussion and Analysis of
Financial Condition and Results of Operation -- Liquidity and Capital
Resources." However, in order to continue to fund those activities subsequent to
the first half of 1998 at the current or higher levels, the Company will have to
raise substantial additional funds through some combination of the following:
increasing the borrowing base under the Revolving Credit Facility as well as an
increase in the total amount of the Facility, arranging additional debt, equity
or other financing, and obtaining other additional sources of funds. If
production revenues are less than anticipated or reserves decline, or, if its
expected levels of capital expenditures increase materially, the Company may
have limited ability to obtain the capital necessary to undertake or complete
future drilling programs. There can be no assurance that increased bank lines,
debt, equity or other financing or other sources of funds will be available or
that, if available, will be on terms acceptable to the Company or sufficient to
meet these or other corporate requirements. See "-- Effects of Leverage;
Existing Indebtedness," "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital Resources," and
"Business and Properties -- Current Fields and Prospects."
SUBSTANTIAL INDEBTEDNESS; LEVERAGE AND DEBT SERVICE
As of September 30, 1997, the Company's total long-term debt was
approximately $150 million as compared to stockholder's equity of approximately
$91.9 million. The Company expects to continue to incur substantial indebtedness
under its Revolving Credit Facility (assuming it is amended) and be required to
arrange additional financing to fund its continuing exploration and development
activities. See "-- Substantial Capital Requirements", "Capitalization" and "Use
of Proceeds." The Company's plans to increase its leverage will have important
consequences to holders of the Notes, including the following: (i) the level of
indebtedness may pose substantial risks to holders of the Notes, including the
possibility that the Company might not generate sufficient cash flow to pay the
principal of and interest on the Notes; (ii) the Company's ability to obtain
additional financing in the future for working capital, capital expenditures,
acquisitions or general corporate purposes may be impaired; (iii) a portion of
the Company's cash flow from operations must be dedicated to the payment of the
principal of and interest
18
<PAGE> 22
on its existing and future indebtedness; (iv) certain of the Company's future
borrowings, including those under the Revolving Credit Facility, may be at
variable rates of interest, which would make the Company vulnerable to increases
in interest rates; (v) the terms of certain of the Company's current and future
indebtedness may permit its creditors to accelerate payments upon certain events
of default or a change of control of the Company; and (vi) the Company may have
reduced capacity and less flexibility to satisfy its obligations (including the
Notes), in the event the Company's revenues do not increase as anticipated. See
"Use of Proceeds" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital Resources."
The Revolving Credit Facility and the Indenture impose financial and other
restrictions on the Company and its subsidiaries, including limitations on the
incurrence of additional indebtedness and limitations on the sales of assets.
The Revolving Credit Facility also requires the Company to (i) make principal
payments from the proceeds of certain asset sales and in the event that the
Company's outstanding debt exceeds the Borrowing Base (as defined therein), and
(ii) maintain an EBITDA to interest coverage ratio for fiscal quarters ending on
and after September 30, 1997 as follows: 1.5:1 for the quarter ending September
30, 1997, 2.75:1 for the quarter ending December 31, 1997 and 3:1 thereafter,
such rates to be calculated excluding interest payable from the interest escrow
for the Notes. As of September 30, 1997, the Company was not in compliance with
the covenant requiring the Company to maintain an EBITDA to interest coverage
ratio of 1.5:1 for the quarter ending September 30, 1997. Such non-compliance,
however, was waived by the Company's lenders. There can be no assurance that
these requirements or other material requirements of the Revolving Credit
Facility will be met in the future. If they are not, the lenders under the
Revolving Credit Facility would be entitled to declare the indebtedness
thereunder immediately due and payable. Additionally, in the event of such an
acceleration of indebtedness by the lenders under the Revolving Credit Facility,
a default would be deemed to occur under the terms of the Notes. See
"Description of Revolving Credit Facility" and "Description of the
Notes -- Defaults."
In addition, the Revolving Credit Facility and the Indenture contain
certain restrictive covenants that may limit the ability of the Company to
engage in certain transactions. See "Description of the Notes -- Certain
Covenants."
PRIMARY CUSTOMER
All natural gas produced from the Tantawan and Benchamas Fields is to be
sold to PTT. The Concessionaires have entered into a long-term gas sales
agreement with PTT, which maintains a monopoly over gas transmission and
distribution in Thailand. Failure of PTT or the Concessionaires to comply with
the terms of the gas sales agreement would have a material adverse effect on the
Company.
In November 1996, the Concessionaires signed the MOU for the sale to PTT of
the crude oil production from the Tantawan Field. In early July, 1997, the
Company had its first oil lifting from the Tantawan Field and sold 278,000
barrels of oil pursuant to the MOU. In October, the Company and the other
Concessionaires received permission from the Thai Department of Mineral
Resources to export crude oil produced from the Block and sold its second oil
lifting for U.S. dollars to a third party purchaser for export. The Company
expects that the Concessionaires will continue to sell their crude oil for U.S.
dollars to a number of purchasers at market prices. As a result, the Company
expects that the MOU with PTT will be terminated. See "Business and
Properties -- Marketing and Contracts."
THAI ECONOMY
The economy of Thailand has recently been subject to a number of
significant events, including the July 2, 1997 announcement by the Kingdom of
Thailand that the value of the Baht would be subject to market forces, the
subsequent decline in the value of the Baht and the closing of a number of
financial institutions. Various countries and the International Monetary Fund
have pledged approximately US $16 billion to stabilize Thailand's economy in
return for Thailand's agreement to strengthen its banking and financial system,
control inflation, increase the VAT tax, reduce the current account deficit and
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maintain fiscal discipline. The Company can not predict whether these funds or
the other measures undertaken by the Kingdom of Thailand will be successful or
sufficient to reestablish conditions for sustained economic growth or whether
these adverse events or any slowdown in certain sectors of the Thai economy will
lead to a lessening of the growth rate for Thai energy demand.
CONCENTRATION OF OPERATIONS; PROPERTIES UNDER DEVELOPMENT
All of the Company's reserves are located within the Block. Development of
the Block is not completed and production therefrom has only recently commenced.
Currently, the Company's sole source of operating revenue is the sale of
production from wells in the Tantawan Field in the Block. This concentration of
operations increases the Company's exposure to any regional events generally, or
any events affecting Thailand or its economy in particular, that may increase
costs, reduce availability of equipment or supplies, restrict drilling
activities, reduce demand, increase supply or limit or delay production. See
"Business and Properties -- Current Fields and Prospects."
LIMITED OPERATING HISTORY; LACK OF PROFITABLE OPERATIONS
The Company has a short operating history, having commenced production in
the first quarter of 1997 and, therefore, there is a limited historical
operating information about the Company on which to base an evaluation of the
Company's performance. To date, the Company's exploration and development
activities have not generated substantial revenues, causing the Company to incur
losses as it has expended funds to start up its operations. In addition, the
Company expects that it will continue to incur losses for at least the remainder
of 1997. The Company's ability to generate income or positive cash flow will
depend upon the success of its exploration and development drilling program.
There can be no assurance that any future wells drilled by the Company will be
productive or that the Company will recover all or any portion of its
investment. Further, the drilling of several dry holes, without an increase in
current reserves could require a write-down of the Company's oil and natural gas
properties if all costs of acquisition, exploration and development of reserves
(net of depreciation, depletion and amortization) exceed the present value of
the estimated future net cash flow from the Company's proven reserves calculated
in accordance with applicable Commission requirements. See "-- Substantial
Capital Requirements", "-- Reserve Exploration, Development and Production
Risks" and "Management's Discussion and Analysis of Financial Condition and
Results of Operations."
UNCERTAINTIES IN ESTIMATING RESERVES AND FUTURE NET CASH FLOWS
Proved reserves of oil and natural gas are estimated quantities that
geological and engineering data demonstrate with reasonable certainty to be
economically producible under existing conditions. There are numerous
uncertainties inherent in estimating quantities and values of proven,
undeveloped reserves and in projecting future rates of production and the timing
of development expenditures. Reservoir engineering, pricing, and operating and
regulatory constraints each add to the uncertainty of reserve estimates. Reserve
assessment is a subjective process of estimating the recovery from underground
accumulations of hydrocarbons that cannot be precisely measured. All reserve
estimates are to some degree speculative, and various classifications of
reserves only constitute attempts to define the degree of speculation involved.
The accuracy of any reserve estimate is a function of available data,
engineering and geological interpretations, judgments based on the data, and
assumptions regarding oil and gas prices. Accordingly, as further information is
obtained for Block B8/32, reserve estimates are likely to differ, perhaps
materially, from the quantity of hydrocarbons that are ultimately recovered. The
reserve data included in this Prospectus are based upon volumetric information
as no substantial production history exists from wells within the Block. Results
of drilling, testing and production history from the Company's wells and changes
in oil and natural gas prices and cost estimates subsequent to the date of its
reserve estimates could require substantial adjustments, either upward or
downward, to those estimates. Any significant downward adjustment could
adversely affect the Company's financial condition, future prospects and ability
to service debt. See "Business and Properties -- Reserves."
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The present value of future net cash flows referred to in this Prospectus
should not be construed as the current market value of the estimated oil and
natural gas reserves attributable to the Company's properties. In accordance
with applicable requirements of the Commission, the estimated discounted future
net cash flows from proven reserves are generally based on prices and costs as
of the date of the estimate; however, actual future volumes, prices and costs
may be materially higher or lower, especially in light of the early stage of
development of Block B8/32. Actual future net cash flows, and thus their present
value, also will be affected by the amount and timing of production and
production expenses, supply and demand for oil and gas, curtailments or
increases in oil and gas consumption, actual amounts paid pursuant to the
Concession agreement including royalties and special remuneratory benefits
("SRBs"), which benefits may vary from zero to 75% of Annual Petroleum Profits
(hydrocarbon revenues, net of royalties, production bonuses, capital
expenditures and operating expenses) and changes in governmental regulations and
taxation. Assuming the Concessionaires continue to conduct substantial drilling
activity in the Block, the Company does not anticipate paying any SRBs for the
foreseeable future. See "Business and Properties -- Thai Concession Terms." In
addition, the Commission requires the Company to use a 10% discount rate to
calculate discounted future net cash flows for reporting purposes. This rate
does not necessarily reflect interest rates in effect from time to time or the
risks associated with the Company and the oil and gas industry in general.
RESERVE EXPLORATION, DEVELOPMENT AND PRODUCTION RISKS
The Company's operations in the Block involve risks normally incident to
the exploration for and production of oil and gas, including blowouts, oil
spills and fires (each of which could result in damage to or destruction of
wells, production facilities or other property, or injury to persons), geologic
uncertainties and unusual or unexpected formations and pressures, delays in or
lack of reasonable availability of drilling and production equipment and
services, failure to produce oil or gas in commercial quantities or inability to
fully produce discovered reserves. The Company's offshore operations are also
subject to hazards inherent in offshore operations, such as capsizing, sinking,
collision and damage from severe weather conditions. The occurrence of a
significant event against which the Company is not fully insured could have a
material adverse effect on the Company's financial position and results of
operations. Oil and gas exploration may involve unprofitable efforts, not only
from dry wells, but from wells that are productive but do not produce sufficient
net revenues to return a profit after drilling, operating and other costs.
Completion of a well does not assure a profit on the investment or recovery of
such costs. In addition, drilling hazards or environmental damage could greatly
increase operating costs, and various field operating conditions may adversely
affect the Company's production from successful wells. These conditions include
delays in obtaining regulatory approvals, shut-ins of connected wells due to
insufficient storage or transportation capacity or other geological and
mechanical conditions. While close well supervision and effective maintenance
operations can contribute to maximizing production rates over time, production
delays and declines from normal field operating conditions cannot be eliminated
and can be expected to adversely affect revenue and cash flow levels to varying
degrees.
If the Concessionaires do not deliver the natural gas production at a
specified quantity and quality levels, the Company and the other Tantawan
Concessionaires are obligated to contribute to PTT's capital costs incurred in
the construction of a 33-mile spur pipeline from the Tantawan Field to the main
PTT trunk line. Also, under the GSA, the Tantawan Concessionaires' liability for
failure to deliver the minimum contracted daily rate is limited to PTT's right
to take from subsequent deliveries an amount equal to the quantity of natural
gas not delivered at 75% of the contracted price. See "Business and
Properties -- Marketing and Contracts."
DEPENDENCE ON THIRD-PARTY OPERATOR
A subsidiary of Pogo operates the oil and gas properties in the Block, and
independent contractors are responsible for the operation of the FPSO and
certain other activities required for the exploration, development and
exploitation of the Block. Therefore, the Company has limited control over the
manner in which operations are conducted and the safety and environmental
standards used in connection
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therewith. The operator could refuse to initiate exploration or development
projects, in which case the Company would be required to propose such activities
and may be required to proceed with such activities without receiving any
funding from the operator. The operator is also a Concessionaire and as such is
responsible for 46.34% of the costs of the exploration and development
activities in the Block. If the operator (or the other Concessionaire) were not
able to finance its share of the exploration and development costs, the Company
and the other Concessionaire would either have to fund such costs or find an
additional co-venturer. Further, the operator may initiate exploration or
development projects on a slower or faster schedule than that preferred by the
Company. In addition, the failure of any subcontractor to perform its
obligations would have a material adverse effect on the development of or
production from the Block. Any of these events could have a significant effect
on the Company's anticipated exploration and development activities. Pursuant to
the operating agreements governing operations in the Block, however, the Company
maintains significant influence or control over the nature and timing of
exploration and development activities due to its large ownership interest.
Management believes that its ownership interest and its close working
relationship with the other Concessionaires will continue to allow RMOC to
influence the Block's exploration and development activities. See "Business and
Properties -- Operating Agreements."
RELIANCE ON DEVELOPMENT OF ADDITIONAL RESERVES
The Company's financial condition, results of operation and future growth
and the carrying value of its proven reserves depend substantially on its
ability to acquire or find and successfully develop additional oil and gas
reserves. The Company must continually acquire, explore for and develop new
hydrocarbon reserves to replace those to be produced and sold. Without
successful development and exploratory drilling for, or acquisition of,
reserves, the Company's reserve base and revenues will generally decline as
production continues. See "-- Reserve Exploration, Development and Production
Risks."
SUBORDINATION OF THE NOTES AND THE SUBSIDIARY GUARANTIES
The New Notes will be, and the Old Notes are subordinated in right of
payment to all present and future Senior Indebtedness of the Company, including
the principal, premium (if any) and interest with respect to the Revolving
Credit Facility. The New Notes will rank pari passu with all future senior
subordinated indebtedness of the Company and will rank senior to all future
Subordinated Indebtedness (as defined) of the Company. In addition, the
Subsidiary Guaranties will be subordinated in right of payment to all future
Senior Indebtedness of the Subsidiary Guarantors, will rank pari passu with all
existing and future senior subordinated indebtedness of the Subsidiary
Guarantors and will rank senior to all future Subordinated Indebtedness of the
Subsidiary Guarantors. As of September 30, 1997, the Company and the Subsidiary
Guarantors had approximately $30 million of Senior Indebtedness outstanding (not
including $30 million of additional borrowing capacity under the Revolving
Credit Facility which, if borrowed, would have been Senior Indebtedness).
Consequently, in the event of a bankruptcy, liquidation, dissolution,
reorganization or similar proceeding with respect to the Company, assets of the
Company and the Subsidiary Guarantors will be available to pay obligations of
the Notes only after all Senior Indebtedness of the Company and the Subsidiary
Guarantors has been paid in full. There can be no assurance that there will be
sufficient assets to pay amounts due on all or any of the Notes. The holders of
any indebtedness of the Company's subsidiaries other than the Subsidiary
Guarantors will be entitled to payment thereof from the assets of such
subsidiaries prior to the holders of any general, unsecured obligations of the
Company, including the Notes. See "Description of the Notes -- Ranking and
Subordination" and "Guaranties."
The Notes are also unsecured and will be subordinated to any secured
indebtedness of the Company. As of the date of this Prospectus, the indebtedness
outstanding under the Revolving Credit Facility is secured by liens on the stock
of certain subsidiaries of the Company. Any Senior Indebtedness of the Company
or any Subsidiary Guarantor may be secured by all or a portion of the assets of
the Company or such Subsidiary Guarantor, as appropriate. The ability of the
Company to comply with
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the provisions of the Revolving Credit Facility or any such other Senior
Indebtedness may be affected by events beyond the Company's control. The breach
of any such provisions could result in a default under any other Senior
Indebtedness, in which case, depending on the actions taken by the lenders
thereunder, or their successors or assignees, such lenders could elect to
declare all amounts borrowed under any such other Senior Indebtedness, together
with accrued interest, to be due and payable, and the Company and the Subsidiary
Guarantors could be prohibited from making payments of interest and principal on
the Notes until the default is cured or all Senior Indebtedness is paid or
satisfied in full. In addition, such lenders could proceed against the
collateral, which constitutes a significant portion of the Company's assets. See
"Description of Other Indebtedness" and "Description of the Notes -- Ranking and
Subordination."
FRAUDULENT CONVEYANCE; ENFORCEABILITY OF SUBSIDIARY GUARANTY BY THAI CORPORATION
The Subsidiary Guaranties may be subject to review under relevant Federal
and State fraudulent conveyance and similar statutes in a bankruptcy or
reorganization case or a lawsuit brought by or on behalf of creditors of the
Subsidiary Guarantors. To the extent that a court were to find that at the time
a Subsidiary Guarantor entered into a Subsidiary Guaranty either (i) the
Subsidiary Guarantee was incurred by a Subsidiary Guarantor with the intent to
hinder, delay or defraud any present or future creditor or that a Subsidiary
Guarantor contemplated insolvency with a design to favor one or more creditors
to the exclusion in whole or in part of others or (ii) the Subsidiary Guarantor
did not receive fair consideration or reasonably equivalent value for issuing
the Subsidiary Guarantee and, at the time it issued the Subsidiary Guaranty, the
Subsidiary Guarantor (x) was insolvent or rendered insolvent by reason of the
issuance of the Subsidiary Guaranty, (y) was engaged or about to engage in a
business or transaction for which the remaining assets of the Subsidiary
Guarantor constituted unreasonably small capital or (z) intended to incur, or
believed that it would incur, debts beyond its ability to pay such debts as they
matured, the court could avoid or subordinate the Subsidiary Guaranty in favor
of the Subsidiary Guarantor's other debts or liabilities or take other action
detrimental to the holders of the Notes. The Subsidiary Guaranties could also be
subject to the claim that, the Subsidiary Guaranties were incurred for the
benefit of the Company (and only indirectly for the benefit of the Subsidiary
Guarantors) and that the obligations of the Subsidiary Guarantors thereunder
were incurred for less than reasonably equivalent value or fair consideration.
To the extent a Subsidiary Guaranty is avoided as a result of fraudulent
conveyance or held unenforceable for any other reason, the holders of the Notes
would cease to have any claim in respect of such Subsidiary Guarantor and would
be creditors solely of the Company and the remaining Subsidiary Guarantors, if
any. See "Description of Revolving Credit Facility" and "Description of the
Notes."
All of the Company's oil and gas assets are held by Thai Romo and B8/32
Partners, both of which are Thai corporations. Thai Romo is a Subsidiary
Guarantor and pursuant to the Indenture consented to submission to the
jurisdiction of the laws of New York. There is no basis under the laws of
Thailand for a Thai corporation to submit to the jurisdiction of a court of any
authority outside Thailand. Accordingly, the validity and binding effect in
Thailand of this submission by a Subsidiary Guarantor to the jurisdiction of a
foreign court and of the waivers to objections to such a forum is uncertain. Any
judgment or order obtained from a foreign court would not be enforced as such by
the Courts of Thailand, but such judgment or order may in the discretion of the
Courts of Thailand be admitted as evidence of an obligation in new proceedings
instituted in the Courts of Thailand, which would judge the issue on the
evidence before it.
If a proceeding is undertaken in the Courts of Thailand for the enforcement
of the Subsidiary Guaranty of Thai Romo, which is expressed to be governed by
the laws of New York, the choice of New York law as the governing law thereof
will, in respect of the essential elements or effects thereof, be recognized and
applied to the extent only to which such law: (1) is proven to the satisfaction
of the Courts of Thailand (which satisfaction is within the discretion of the
Courts); and (2) is not considered contrary to the public order or good morals
of the people of Thailand. The scope of the public order or
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good morals of the people of Thailand has not been established in any Supreme
Court of Thailand judgment and is uncertain.
MARKET CONDITIONS AND CHANGING OIL AND GAS PRICES
The revenues expected to be generated by the Company's future operations
will be highly dependent upon the prices of and demand for oil and natural gas.
Natural gas produced from the Company's Tantawan and Benchamas Fields is subject
to the GSA with PTT with prices subject to semi-annual adjustment (or more
frequent adjustments under certain circumstances) based on movements in, among
other things, inflation, oil prices and the Thai Baht/U.S. Dollar exchange rate.
The price received by the Company for its oil production and the level of
production will depend on numerous factors beyond the Company's control,
including the condition of the world economy, political and regulatory
conditions in Thailand and other oil and gas producing countries, and the
actions of the Organization of Petroleum Exporting Countries. Decreases in the
prices of gas or oil could have an adverse effect on the carrying value of the
Company's proven reserves and the Company's revenues, profitability, cash flow
and borrowing base availability under the Revolving Credit Facility. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
In order to manage its exposure to price risks in the marketing of its oil
production, the Company has entered into crude oil swaps and may enter into
other oil futures contracts as hedging devices. Such contracts may expose the
Company to the risk of financial loss in certain circumstances, including
instances when production is less than expected, the contract purchasers fail to
purchase or deliver the contracted quantities of oil, or a sudden, unexpected
event materially decreases oil prices. Such contracts may also restrict the
ability of the Company to benefit from unexpected increases in oil prices. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
INTERNATIONAL OPERATIONS AND CURRENCY EXCHANGE RATES
The Company expects that sales outside the United States will account for
virtually all of its revenue. Certain risks are inherent in international
operations, such as currency exchange controls, unexpected changes in regulatory
requirements, unique local requirements, risk of political instability,
potentially adverse tax consequences and the burdens of complying with foreign
legislation. There is no assurance that such factors will not have an adverse
effect on the Company's financial condition or on its results of operations. See
"Business and Properties -- Tax Regulation."
Currently, the Company is paid for its gas sales in Baht, the Thai
currency. The Baht has been linked for many years to the value of a basket of
currencies, primarily the U.S. Dollar. On July 2, 1997, the Thai government
announced that the value of the Baht would thereafter be determined by market
forces. Since the announcement, the value of the Baht against the U.S. Dollar
has substantially declined. The price the Company receives under its gas sales
agreement has an adjustment applicable over the full contract term for changes
in the exchange rate between the Baht and the U.S. Dollar, although the timing
of such adjustment may lag actual fluctuations in the exchange rate and the
amount may not be sufficient to offset all of such a currency movement.
Accordingly, decreases in the value of the Baht versus the U.S. Dollar could
have an adverse effect on the Company's financial condition or on the results of
its operations, particularly in light of the limited ability to hedge the
long-term exchange rate risk currently implicit in the gas sales agreement. See
"Business and Properties -- Marketing."
GOVERNMENT REGULATION AND ENVIRONMENTAL RISKS
The Company's business is currently regulated by the laws and regulations
of the Kingdom of Thailand relating to the development, production, marketing,
pricing, transportation and storage of natural gas and crude oil, taxation and
environmental and safety matters. The Company does not believe that
environmental regulations will have a material adverse effect on its capital
expenditures,
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results of operations or competitive position, and does not anticipate that any
material expenditures will be required to enable it to comply with existing laws
and regulations. However, the modification of existing laws or regulations or
the adoption of new laws or regulations curtailing exploratory or developmental
drilling for oil and gas for economic, environmental or other reasons could have
a material adverse effect on the Company's operations.
The Company's assets and operations are subject to various political,
economic and other uncertainties, including, among other things, the risks of
war, expropriation, nationalization, renegotiation or nullification of existing
concessions and contracts, taxation policies, foreign exchange and repatriation
restrictions, changing political conditions, fluctuations between the Baht and
the U.S. Dollar, currency controls and foreign governmental regulations that
favor or require the awarding of drilling contracts to local contractors or
require foreign contractors to employ citizens of, or purchase supplies from, a
particular jurisdiction. In addition, in the event of a dispute arising from
foreign operations, the Company may be subject to the exclusive jurisdiction of
foreign courts or may not be successful in subjecting foreign persons to the
jurisdiction of courts in the United States. The Company may also be hindered or
prevented from enforcing its rights with respect to a governmental
instrumentality because of the doctrine of sovereign immunity.
The Concession agreement and regulations promulgated pursuant to Thai law
(collectively, "Concession Obligations") contain requirements regarding quality
of service, capital expenditures, legal status of the Concessionaires,
restrictions on transfer and encumbrance of assets and other restrictions.
Failure to comply with these Concession Obligations could result, under certain
circumstances, including without limitation the bankruptcy of any of the
Concessionaires, in the revocation of the Concession agreement. Termination or
revocation of the Concession agreement for any reason would have a material
adverse effect on the Company. See "Business and Properties -- Thai Concession
Terms."
COMPETITION
The oil and gas industry is highly competitive. The Company's competitors
for the acquisition, exploration, production and development of oil and natural
gas properties in Southeast Asia, and for capital to finance such activities,
include companies that have substantially greater financial and human resources
than the Company. The Company's ability to acquire additional properties, to
discover reserves and to participate in drilling opportunities in the future
will be dependent upon its ability to select and evaluate suitable properties
and to consummate transactions in a highly competitive environment.
DEPENDENCE ON KEY PERSONNEL
The success of the Company will be highly dependent on senior management
personnel. Loss of the services of any of these individuals could have an
adverse impact on the Company's operations. There can be no assurance regarding
the future affiliation of any of these senior management personnel or that there
will not be competition between the Company and such individuals.
TAXES
Thai Romo will be required to pay Thai Petroleum Income Tax (currently 50%
of Thai taxable income), as well as royalties and SRBs to the Thai government
for any production of reserves in Thailand. See "Business and Properties -- Tax
Regulation -- Certain Thailand Tax Consequences." It is possible that the amount
of Thai Petroleum Income Tax treated as a creditable tax for United States
federal income tax purposes will be less than 35%, with the result that the
Company may owe residual United States federal income taxes on its pro rata
share of Thai Romo's net taxable income allocated to the Company. Moreover, the
Company may be subject to the United States federal alternative minimum tax on
its pro rata share of Thai Romo's net taxable income allocated to the Company
because the alternative minimum tax foreign tax credit may not fully offset the
Company's alternative minimum tax.
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See "Business and Properties -- Tax Regulation -- Certain United States Federal
Income Tax Consequences to the Company."
LIMITATION ON PURCHASE OF NOTES UPON A CHANGE OF CONTROL
Upon a Change of Control, (i) the Company will have the option, at any time
prior to October 1, 2001, to redeem the Notes, in whole but not in part, at a
redemption price equal to 100% of the principal amount thereof plus the
Applicable Premium and accrued and unpaid interest, if any, to the date of
redemption and (ii) if the Company does not redeem the Notes pursuant to clause
(i) above, the Holders of the Notes may require the Company to redeem the Notes
at a price equal to 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of redemption. The Revolving Credit
Facility prohibits the repurchase of the Notes without the consent of the
lenders having 75% of the commitments under the Revolving Credit Facility. In
addition, certain of the events that constitute a Change of Control hereunder
would constitute a default under the Revolving Credit Facility, which would
prohibit the purchase of the Notes by the Company unless and until such time as
the Company's indebtedness under the Revolving Credit Facility is repaid in
full. There can be no assurance that the Company and the Subsidiary Guarantors
would have sufficient financial resources available to satisfy all of its or
their obligations under the Revolving Credit Facility and the Notes in the event
of a Change of Control. The Company's failure to purchase the Notes would result
in a default under the Indenture and under the Revolving Credit Facility, each
of which could have adverse consequences for the Company and the holders of the
Notes. See "Description of Revolving Credit Facility" and "Description of the
Notes -- Change of Control." The definition of "Change of Control" in the
Indenture includes a sale, lease, conveyance or transfer of "all or
substantially all" of the assets of the Company and certain of its Restricted
Subsidiaries taken as a whole to a person or group of persons. There is little
case law interpreting the phrase "all or substantially all" in the context of an
indenture. Because there is no precise established definition of this phrase,
the ability of a holder of the Notes to require the Company to repurchase such
Notes as a result of a sale, lease, conveyance or transfer of all or
substantially all of the Company's assets to a person or group of persons may be
uncertain.
CONSEQUENCES OF FAILURE TO EXCHANGE
Upon consummation of the Exchange Offer, holders of Old Notes that were not
prohibited from participating in the Exchange Offer and did not tender their Old
Notes will not have any registration rights under the Registration Rights
Agreement with respect to such nontendered Old Notes and, accordingly, such Old
Notes will continue to be subject to the restrictions on transfer contained in
the legend on the Old Notes. In general, the Old Notes may not be offered or
sold, unless registered under the Securities Act and applicable state securities
laws, except pursuant to an exemption from, or in a transaction not subject to,
the Securities Act and applicable state securities laws. The Company does not
intend to register the Old Notes under the Securities Act. Based on no-action
letters issued by the staff of the Commission to third parties, the Company
believes that the New Notes issued pursuant to the Exchange Offer in exchange
for Old Notes may be offered for resale, resold and otherwise transferred by any
holder of such New Notes (other than any such holder that is an "affiliate" of
the Registrant within the meaning of Rule 405 under the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such New Notes are acquired in the ordinary course
of such holder's business, such holder has no arrangement or understanding with
any person to participate in the distribution of such New Notes, and neither the
holder nor any other person is engaging in or intends to engage in a
distribution of the New Notes. Any holder who tenders in the Exchange Offer for
the purpose of participating in a distribution of New Notes cannot rely on such
interpretation by the staff of the Commission and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction. Each broker-dealer that receives New
Notes for its own account in exchange for Old Notes where such Old Notes were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. The Letter of Transmittal states
that by so acknowledging and by delivering a prospectus, a
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broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of the New Notes received in exchange for the Old Notes acquired by
the broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that it will make this Prospectus and any
amendment or supplement to the Prospectus available to any broker-dealer for use
in connection with any such resale for a period of 90 days after the Exchange
Date or, if earlier, until all participating broker-dealers have so resold. See
"Plan of Distribution." The New Notes may not be offered or sold unless they
have been registered or qualified for sale under applicable state securities
laws or an exemption from registration or qualification is available and is
complied with. The Registrant is required, under the Registration Rights
Agreement, to register the New Notes in any jurisdiction requested by the
holders, subject to certain limitations.
LACK OF PUBLIC MARKET
There is currently no active trading market for the New Notes. If the New
Notes are traded after their initial issuance, they may trade at a discount from
their initial offering price, depending upon prevailing interest rates, the
market for similar securities and other factors, including general economic
conditions and the financial condition of the Company. The Company does not
intend to apply for a listing or quotation of the New Notes on any securities
exchange or stock market. The Initial Purchasers have informed the Company that
they currently intend to make a market in the New Notes. However, the Initial
Purchasers are not obligated to do so, and any such market making may be
discontinued at any time without notice. No assurance can be given as to the
liquidity of the trading market for the New Notes. Accordingly, there can be no
assurance as to the development or liquidity of any market for the New Notes.
See "Plan of Distribution."
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<PAGE> 31
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
On September 29, 1997, the Company issued $120,000,000 aggregate principal
amount of Old Notes to the Initial Purchasers. The issuance was not registered
under the Securities Act in reliance upon the exemptions under Rule 144A and
Regulation S under the Securities Act. In connection with the issuance and sale
of the Old Notes, the Company entered into the Registration Rights Agreement
that requires the Registrant to cause the Old Notes to be registered under the
Securities Act or to file with the Commission a registration statement under the
Securities Act with respect to an issue of new notes of the Registrant identical
in all material respects to the Old Notes, to use its best efforts to cause such
registration statement to become effective under the Securities Act and, upon
the effectiveness of that registration statement, to offer to the holders of the
Old Notes the opportunity to exchange their Old Notes for an equal principal
amount of New Notes, which will be issued without a restrictive legend and may
be reoffered and resold by the holder without restrictions or limitations under
the Securities Act. A copy of the Registration Rights Agreement has been filed
as an exhibit to the Registration Statement of which this Prospectus is a part.
The Exchange Offer is being made pursuant to the Registration Rights Agreement
to satisfy the Registrant's obligations under the Registration Rights Agreement.
Based on no action letters issued by the staff of the Commission to third
parties, the Company believes that the New Notes issued pursuant to the Exchange
Offer in exchange for Old Notes may be offered for resale, resold, and otherwise
transferred by any holder of such New Notes (other than any such holder that is
an "affiliate" of the Registrant within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such New Notes are acquired in
the ordinary course of such holder's business, such holder has no arrangement or
understanding with any person to participate in the distribution of such New
Notes, and neither the holder nor any other person is engaging in or intends to
engage in a distribution of the New Notes. Any holder who tenders in the
Exchange Offer for the purpose of participating in a distribution of the New
Notes cannot rely on such interpretation by the staff of the Commission and must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction. Each broker-dealer
that receives New Notes for its own account in exchange for Old Notes, where
such Old Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of the New Notes received in exchange for the Old Notes acquired by
the broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that it will make this Prospectus and any
amendment or supplement to this Prospectus available to any broker-dealer for
use in connection with any such resale for a period of 90 days after the
Exchange Date or, if earlier, until all participating broker-dealers have so
resold. See "Plan of Distribution."
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this Prospectus
and in the accompanying Letter of Transmittal (which together constitute the
Exchange Offer), the Registrant will accept any and all Old Notes validly
tendered and not withdrawn prior to 5:00 p.m., New York City time, on the
Expiration Date (as defined). The Registrant will issue a principal amount of
New Notes in exchange for a like aggregate principal amount of outstanding Old
Notes tendered and accepted in the Exchange Offer. Holders may tender some or
all of their Old Notes pursuant to the Exchange Offer. However, Old Notes may be
tendered only in denominations of $1000 principal amount and integral multiples
thereof. The date of acceptance for exchange of the Old Notes for the New Notes
(the "Exchange Date") will be the first business day following the Expiration
Date.
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<PAGE> 32
The terms of the New Notes and the Old Notes are identical in all material
respects, except for certain transfer restrictions relating to the Old Notes,
which will not apply to the New Notes. See "Description of the Notes." The New
Notes will evidence the same debt as the Old Notes. The New Notes will be issued
under and entitled to the benefits of the Indenture pursuant to which the Old
Notes were issued.
As of the date of this Prospectus, $120,000,000 aggregate principal amount
of the Old Notes are outstanding. This Prospectus, together with the Letter of
Transmittal, is being sent to all registered holders of Old Notes.
The Registrant intends to conduct the Exchange Offer in accordance with the
provisions of the Registration Rights Agreement and the applicable requirements
of the Exchange Act, and the rules and regulations of the Commission under the
Exchange Act. Old Notes that are not tendered and were not prohibited from being
tendered for exchange in the Exchange Offer will remain outstanding and continue
to accrue interest and to be subject to transfer restrictions, but will not be
entitled to any rights or benefits under the Registration Rights Agreement.
Upon satisfaction or waiver of all the conditions to the Exchange Offer, on
the Exchange Date the Registrant will accept all Old Notes properly tendered and
not withdrawn and will issue New Notes in exchange therefor. For purposes of the
Exchange Offer, the Company will be deemed to have accepted properly tendered
Old Notes for exchange when, as, and if the Company had given oral or written
notice thereof to the Exchange Agent. The Exchange Agent will act as agent for
the tendering holders for the purposes of receiving the New Notes from the
Registrant.
In all cases, issuance of New Notes for Old Notes that are accepted for
exchange pursuant to the Exchange Offer will be made only after timely receipt
by the Exchange Agent of such Old Notes, a properly completed and duly executed
Letter of Transmittal, and all other required documents; provided, however, that
the Registrant reserves the absolute right to waive any defects or
irregularities in the tender or conditions of the Exchange Offer. If any
tendered Old Notes are not accepted for any reason set forth in the terms and
conditions of the Exchange Offer or if Old Notes are submitted for a greater
principal amount than the holder desires to exchange, such unaccepted or
nonexchanged Old Notes or substitute Old Notes evidencing the unaccepted
portion, as appropriate, will be returned without expense to the tendering
holder as promptly as practicable after the expiration or termination of the
Exchange Offer.
Holders who tender Old Notes in the Exchange Offer will not be required to
pay brokerage commissions or fees or, subject to the instructions in the Letter
of Transmittal, transfer taxes with respect to the exchange of Old Notes
pursuant to the Exchange Offer. The Registrant will pay all charges and
expenses, other than certain applicable taxes described below, in connection
with the Exchange Offer. See "Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date," means 5:00 p.m., New York City time, on January
, 1998, unless the Registrant, in its sole discretion, extends the Exchange
Offer, in which case the term "Expiration Date" will mean the latest date and
time to which the Exchange Offer is extended; provided that the Exchange Offer
will not be extended beyond 30 business days after the date of this Prospectus.
In order to extend the Expiration Date, the Registrant will notify the
Exchange Agent of any extension by oral or written notice and will mail to the
registered holders an announcement of the extension, prior to 9:00 a.m., New
York City time, on the next business day after the then Expiration Date.
The Registrant reserves the right, in its sole discretion, (i) to delay
accepting any Old Notes, to extend the Exchange Offer, or to terminate the
Exchange Offer if any of the conditions set forth below under "Conditions" has
not been satisfied, by giving oral or written notice of such delay, extension,
or termination to the Exchange Agent or (ii) to amend the terms of the Exchange
Offer. Any such delay in acceptance or extension, termination, or amendment will
be followed as promptly as practicable by oral or written notice. If the
Exchange Offer is amended in a manner determined by the Registrant to
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<PAGE> 33
constitute a material change, the Registrant will promptly disclose such
amendment in a manner reasonably calculated to inform the holders of Old Notes
of such amendment.
Without limiting the manner in which the Registrant may choose to make a
public announcement of any delay, extension, amendment, or termination of the
Exchange Offer, the Registrant will have no obligation to publish, advertise, or
otherwise communicate any such public announcement, other than by making a
timely release to an appropriate news agency.
INTEREST ON THE NEW NOTES
New Notes will bear interest at the rate of 10 3/4% per annum, payable
semi-annually on April 1 and October 1 of each year, commencing April 1, 1998.
CONDITIONS
Notwithstanding any other term of the Exchange Offer, the Registrant will
not be required to exchange any New Notes for any Old Notes, and may terminate
or amend the Exchange Offer before the acceptance of any Old Notes for exchange,
if the Exchange Offer shall not be permissible under applicable law or
Commission policy.
PROCEDURES FOR TENDERING
The tender of Old Notes by a holder as set forth below and the acceptance
thereof by the Registrant will constitute an agreement between such holder and
the Registrant in accordance with the terms and subject to the conditions set
forth in this Prospectus and in the Letter of Transmittal.
Only a holder of Old Notes may tender such Old Notes in the Exchange Offer.
To tender in the Exchange Offer, a holder must (i) complete, sign, and date the
Letter of Transmittal or a facsimile, have the signatures on the Letter of
Transmittal guaranteed if required by the Letter of Transmittal, and mail or
otherwise deliver such Letter of Transmittal or such facsimile, together with
the Old Notes (unless such tender is being effected pursuant to the procedure
for book-entry transfer described below) and any other required documents, to
the Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration
Date, or (ii) comply with the guaranteed delivery procedures described below.
Delivery of all documents must be made to the Exchange Agent at its address set
forth in this Prospectus.
THE METHOD OF DELIVERY OF OLD NOTES AND THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK OF
THE HOLDER. INSTEAD OF DELIVERY BY MAIL, IT IS RECOMMENDED THAT HOLDERS USE AN
OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. NO
LETTER OF TRANSMITTAL OR OLD NOTES SHOULD BE SENT TO THE REGISTRANT. HOLDERS MAY
REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES, OR
NOMINEES TO EFFECT THE ABOVE TRANSACTIONS FOR SUCH HOLDERS.
Any beneficial owner whose Old Notes are registered in the name of a
broker, dealer, commercial bank, trust company, or other nominee and that wishes
to tender should contact the registered holder promptly and instruct such
registered holder to tender on such beneficial owner's behalf. If such
beneficial owner wishes to tender on such owner's own behalf, such owner must,
prior to completing and executing the Letter of Transmittal and delivering of
such owner's Old Notes, either make appropriate arrangements to register
ownership of the Old Notes in such owner's name or obtain a properly completed
bond power from the registered holder. The transfer of registered ownership may
take considerable time.
Signatures on a Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by an Eligible Institution (as defined) unless
the Old Notes tendered pursuant thereto are tendered (i) by a registered holder
that has not completed the box entitled "Special Payment Instructions" or
"Special Delivery Instructions" on the Letter of Transmittal or (ii) for the
account of an Eligible Institution. In the event that signatures on a Letter of
Transmittal or a notice of withdrawal, as the case
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<PAGE> 34
may be, are required to be guaranteed, such guarantee must be by a member firm
of a registered national securities exchange or of the National Association of
Securities Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States, or an "eligible guarantor institution"
within the meaning of Rule 17Ad-15 under the Exchange Act (an "Eligible
Institution").
If the Letter of Transmittal is signed by a person other than the
registered holder of any Old Notes listed in the Letter of Transmittal, such Old
Notes must be endorsed or accompanied by a properly completed bond power, signed
by such registered holder as such registered holder's name appears on such Old
Notes, with the signature guaranteed by an Eligible Institution. If the Letter
of Transmittal or any Old Notes or bond powers are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations, or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and unless waived by the Registrant,
evidence satisfactory to the Registrant of their authority to so act must be
submitted with the Letter of Transmittal.
Any financial institution that is a participant in the book-entry transfer
facility for the Old Notes may make book-entry delivery of Old Notes by causing
The Depository Trust Company ("DTC") to transfer such Old Notes into the
Exchange Agent's account with respect to the Old Notes in accordance with DTC's
procedures for such transfer. Although delivery of Old Notes may be effected
through book-entry transfer into the Exchange Agent's account at DTC, an
appropriate Letter of Transmittal with any required signature guarantee and all
other required documents must in each case be, or be deemed to be, transmitted
to and received and confirmed by the Exchange Agent at its address set forth
below on or prior to the Expiration Date, or, if the guaranteed delivery
procedures described below are complied with, within the time period provided
under such procedures.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance of tendered Old Notes, and withdrawal of tendered Old Notes
will be determined by the Registrant in its sole discretion, which determination
will be final and binding. The Registrant reserves the absolute right to reject
any and all Old Notes not properly tendered or any Old Notes the Registrant's
acceptance of which would, in the opinion of counsel for the Registrant, be
unlawful. The Registrant also reserves the right to waive any defects,
irregularities, or conditions of tender as to particular Old Notes. The
Registrant's interpretation of the terms and conditions of the Exchange Offer
(including the instructions in the Letter of Transmittal) will be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Old Notes must be cured within such time as the
Registrant determines. Although the Registrant intends to notify holders of
defects or irregularities with respect to tenders of Old Notes, neither the
Registrant, the Exchange Agent, nor any other person will incur any liability
for failure to give such notification. Tenders of Old Notes will not be deemed
to have been made until such defects or irregularities have been cured or
waived. Any Old Notes received by the Exchange Agent that are not properly
tendered and as to which the defects or irregularities have not been cured or
waived will be returned by the Exchange Agent to the tendering holders, unless
otherwise provided in the Letter of Transmittal, as soon as practicable
following the Expiration Date.
In addition, the Registrant reserves the right in its sole discretion to
purchase or make offers for any Old Notes that remain outstanding subsequent to
the Expiration Date or, as set forth below under "Conditions," to terminate the
Exchange Offer and, to the extent permitted by applicable law, purchase Old
Notes in the open market, in privately negotiated transactions, or otherwise.
The terms of any such purchases or offers could differ from the terms of the
Exchange Offer.
By tendering, each holder will also represent to the Registrant that (i)
the New Notes acquired pursuant to the Exchange Offer are being obtained in the
ordinary course of business of the person receiving such New Notes, whether or
not such person is the holder; (ii) neither the holder nor any such person has
an arrangement or understanding with any person to participate in the
distribution of such New Notes; and (iii) neither the holder nor any such other
person is an "affiliate," as defined in Rule 405 under the Securities Act, of
the Registrant, or that if it is an "affiliate," it will comply with the
registration and prospective delivery requirements of the Securities Act to the
extent applicable. In addition, in connection with any resales of New Notes, any
broker-dealer who acquired Old Notes for its own account as a result of
market-making activities or other trading activities must acknowledge that it
will
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<PAGE> 35
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such New Notes. The staff of the Commission has
taken the position in no-action letters issued to third parties including
Shearman & Sterling, SEC No-Action Letter (available July 2, 1993), that
participating broker-dealers may fulfill their prospectus delivery requirements
with respect to the New Notes (other than a resale of an unsold allotment from
the original sale of the Old Notes) with this Prospectus, as it may be amended
or supplemented from time to time. Under the Registration Rights Agreement, the
Company is required to allow participating broker-dealers to use this
Prospectus, as it may be amended or supplemented from time to time, in
connection with the resale of such New Notes. See "Plan of Distribution."
GUARANTEED DELIVERY PROCEDURES
Holders that wish to tender their Old Notes and (i) whose Old Notes are not
immediately available, (ii) that cannot deliver their Old Notes, the Letter of
Transmittal, or any other required documents to the Exchange Agent prior to the
Expiration Date, or (iii) that cannot complete the procedures for book-entry
transfer of Old Notes to the Exchange Agent's account with DTC prior to the
Expiration Date, may effect a tender if:
(a) the tender is made through an Eligible Institution;
(b) on or prior to the Expiration Date, the Exchange Agent receives
from such Eligible Institution a properly completed and duly executed
Notice of Guaranteed Delivery (by facsimile transmission, mail, or hand
delivery) setting forth the name and address of the holder, the certificate
number(s) of such Old Notes (if possible), and the principal amount of Old
Notes tendered, stating that the tender is being made thereby and
guaranteeing that, within five business trading days after the Expiration
Date, (i) the Letter of Transmittal (or facsimile) together with the
certificate(s) representing the Old Notes and any other documents required
by the Letter of Transmittal will be deposited by the Eligible Institution
with the Exchange Agent, or (ii) that book-entry transfer of such Old Notes
into the Exchange Agent's account at DTC will be effected and confirmation
of such book-entry transfer will be delivered to the Exchange Agent; and
(c) such properly completed and executed Letter of Transmittal (or
facsimile), as well as the certificate(s) representing all tendered Old
Notes in proper form for transfer and all other documents required by the
Letter of Transmittal, or confirmation of book-entry transfer of the Old
Notes into the Exchange Agent's account at DTC, are received by the
Exchange Agent within five business trading days after the Expiration Date.
Upon request to the Exchange Agent, a Notice of Guaranteed Delivery will be
sent to holders who wish to tender their Old Notes according to the guaranteed
delivery procedures set forth above.
TERMS AND CONDITIONS OF THE LETTER OF TRANSMITTAL
The Letter of Transmittal contains, among other things, the following terms
and conditions, which are part of the Exchange Offer:
The holder tendering Old Notes exchanges, assigns, and transfers the
Old Notes to the Registrant and irrevocably constitutes and appoints the
Exchange Agent as the holder's agent and attorney-in-fact to cause the Old
Notes to be assigned, transferred, and exchanged. The holder represents and
warrants to the Registrant and the Exchange Agent that (i) it has full
power and authority to tender, exchange, assign, and transfer the Old Notes
and to acquire the New Notes in exchange for the Old Notes; (ii) when the
Old Notes are accepted for exchange, the Registrant will acquire good and
unencumbered title to the Old Notes, free and clear of all liens,
restrictions, charges, and encumbrances and not subject to any adverse
claim; (iii) it will, upon request, execute and deliver any additional
documents deemed by the Registrant to be necessary or desirable to complete
the exchange, assignment, and transfer of tendered Old Notes; and (iv)
acceptance of any tendered Old Notes by the Registrant and the issuance of
New Notes in exchange therefor will constitute performance in full by the
Registrant of its obligations under the Registration Rights
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<PAGE> 36
Agreement, and the Registrant will have no further obligations or
liabilities thereunder to such holders. All authority conferred by the
holder will survive the death or incapacity of the holder and every
obligation of the holder will be binding upon the heirs, legal
representatives, successors, assigns, executors, and administrators of the
holder.
Each holder will also certify that it (i) is not an "affiliate" of the
Registrant within the meaning of Rule 405 under the Securities Act or that,
if it is an "affiliate," it will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent
applicable; (ii) is acquiring the New Notes in the ordinary course of its
business; and (iii) has no arrangement with any person or intent to
participate in, and is not participating in, the distribution of the New
Notes.
WITHDRAWAL OF TENDERS
Except as otherwise provided in this Prospectus, tenders of Old Notes may
be withdrawn at any time prior to 5:00 p.m., New York City time, on the
Expiration Date.
To withdraw a tender of Old Notes in the Exchange Offer, a telegram, telex,
facsimile transmission, or letter indicating notice of withdrawal must be
received by the Exchange Agent at its address set forth in this Prospectus prior
to 5:00 p.m., New York City time, on the Expiration Date. Any such notice of
withdrawal must (i) specify the name of the person having tendered the Old Notes
to be withdrawn (the "Depositor"); (ii) identify the Old Notes to be withdrawn
(including the certificate number or numbers and principal amount of such Old
Notes); (iii) be signed by the holder in the same manner as the original
signature on the Letter of Transmittal by which such Old Notes were tendered
(including any required signature guarantees) or be accompanied by documents of
transfer sufficient to have the Trustee with respect to the Old Notes register
the transfer of such Old Notes into the name of the person withdrawing the
tender; and (iv) specify the name in which any such Old Notes are to be
registered, if different from that of the Depositor. If Old Notes have been
tendered pursuant to the procedure for book-entry transfer, any notice of
withdrawal must specify the name and number of the account at DTC to be credited
with the withdrawn Old Notes or otherwise comply with DTC's procedures. All
questions as to the validity, form, and eligibility (including time of receipt)
of such notices will be determined by the Registrant, whose determination will
be final and binding on all parties. Any Old Notes so withdrawn will be deemed
not to have been validly tendered for purposes of the Exchange Offer and no New
Notes will be issued with respect thereto unless the Old Notes so withdrawn are
validly retendered. Any Old Notes that have been tendered, but not accepted for
payment, will be returned to the holder without cost to such holder as soon as
practicable after withdrawal, rejection of tender, or termination of the
Exchange Offer. Properly withdrawn Old Notes may be retendered by following one
of the procedures described above under "Procedures for Tendering" at any time
prior to the Expiration Date.
UNTENDERED OLD NOTES
Holders of Old Notes whose Old Notes are not tendered or are tendered but
not accepted in the Exchange Offer will continue to hold such Old Notes and will
be entitled to all the rights and preferences and subject to the limitations
applicable to the Old Notes under the Indenture. Following consummation of the
Exchange Offer, the holders of Old Notes will continue to be subject to the
existing restrictions upon transfer, and the Registrant will have no further
obligations to such holders, other than the Initial Purchasers, to provide for
the registration under the Securities Act of the Old Notes held by them. To the
extent that Old Notes are tendered and accepted in the Exchange Offer, the
trading market for untendered and tendered but unaccepted Old Notes could be
adversely affected.
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EXCHANGE AGENT
Bank of Montreal Trust Company, the Trustee under the Indenture, has been
appointed as Exchange Agent of the Exchange Offer. Questions and requests for
assistance, requests for additional copies of this Prospectus or of the Letter
of Transmittal and requests for Notices of Guaranteed Delivery should be
directed to the Exchange Agent addressed as follows:
<TABLE>
<S> <C>
By Registered or Certified Mail, By Facsimile:
by hand or by Overnight Courier Bank of Montreal Trust Company
Bank of Montreal Trust Company Attention: Corporate Trust Department
88 Pine Street, 19th Floor (212) 701-7698
New York, NY 10005 Confirm by Telephone:
Attention: Corporate Trust Department (212) 701-7650
</TABLE>
DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF
INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A
VALID DELIVERY.
FEES AND EXPENSES
The expenses of soliciting tenders will be paid by the Registrant. The
principal solicitation is being made by mail; however, additional solicitation
may be made by telegraph, telephone, or in person by officers, regular
employees, or agents of the Registrant and its affiliates.
The Registrant has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers, or others
soliciting acceptances of the Exchange Offer. The Registrant, however, will pay
the Exchange Agent reasonable and customary fees for its services and will
reimburse it for its reasonable out-of-pocket expenses and will pay the
reasonable fees and expenses of holders in delivering their Old Notes to the
Exchange Agent.
The cash expenses of the Registrant to be incurred in connection with the
Registrant's performance and completion of the Exchange Offer will be paid by
the Registrant. Such expenses include fees and expenses of the Exchange Agent
and Trustee, accounting and legal fees and printing costs, among others.
The Registrant will pay all transfer taxes, if any, applicable to the
exchange of Old Notes pursuant to the Exchange Offer. If, however, certificates
representing New Notes or Old Notes for principal amounts not tendered or
accepted for exchange are to be delivered to, or are to be issued in the name
of, any person other than the registered holder of the Old Notes tendered, or if
tendered Old Notes are registered in the name of any person other than the
person signing the Letter of Transmittal, or if a transfer tax is imposed for
any reason other than the exchange of Old Notes pursuant to the Exchange Offer,
then the amount of any such transfer taxes (whether imposed on the registered
holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes will
be billed directly to such tendering holder.
CONSEQUENCES OF FAILURE TO EXCHANGE
Upon consummation of the Exchange Offer, holders of Old Notes that were not
prohibited from participating in the Exchange Offer and did not tender their Old
Notes will not have any registration rights under the Registration Rights
Agreement with respect to such nontendered Old Notes and, accordingly, such Old
Notes will continue to be subject to the restrictions on transfer contained in
the legend on the Old Notes. In general, the Old Notes may not be offered or
sold unless registered under the Securities Act and applicable state securities
laws, except pursuant to an exemption from, or in a transaction not subject to,
the Securities Act and applicable state securities laws. The Registrant does
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<PAGE> 38
not intend to register the Old Notes under the Securities Act. Based on
no-actions letters issued by the staff of the Commission to third parties the
Company believes that the New Notes issued pursuant to the Exchange Offer in
exchange for Old Notes may be offered for resale, resold, and otherwise
transferred by any holder of such New Notes (other than any such holder that is
an "affiliate" of the Registrant within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such New Notes are acquired in
the ordinary course of such holder's business, such holder has no arrangement or
understanding with any person to participate in the distribution of such New
Notes and neither the holder nor any other person is engaging in or intends to
engage in a distribution of the New Notes. Any holder who tenders in the
Exchange Offer for the purpose of participating in a distribution of New Notes
cannot rely on such interpretation by the staff of the Commission and must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction. Each broker-dealer
that receives New Notes for its own account in exchange for Old Notes where such
Old Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. See "Plan of
Distribution." The New Notes may not be offered or sold unless they have been
registered or qualified for sale under applicable state securities laws or an
exemption from registration or qualification is available and is complied with.
The Registrant is required, under the Registration Rights Agreement, to register
the New Notes in any such jurisdiction requested by the holders, subject to
certain limitations.
OTHER
Participation in the Exchange Offer is voluntary and holders should
carefully consider whether to accept. Holders of the Old Notes are urged to
consult their financial and tax advisors in making their own decisions on
whether to participate in the Exchange Offer.
Upon consummation of the Exchange Offer, holders of the Old Notes that were
not prohibited from participating in the Exchange Offer and did not tender their
Old Notes will not have any registration rights under the Registration Rights
Agreement with respect to such nontendered Old Notes and, accordingly, such Old
Notes will continue to be subject to the restrictions on transfer contained in
the legend on the Old Notes. However, in the event the Company fails to
consummate the Exchange Offer or a holder of Old Notes notifies the Company in
accordance with the Registration Rights Agreement that it will be unable to
participate in the Exchange Offer due to circumstances delineated in the
Registration Rights Agreement, then the holder of the Old Notes will have
certain rights to have such Old Notes registered under the Securities Act
pursuant to the Registration Rights Agreement and subject to conditions
contained in the Registration Rights Agreement.
The Registrant has not entered into any arrangement or understanding with
any person to distribute the New Notes to be received in the Exchange Offer, and
to the best of the Registrant's information and belief, each person
participating in the Exchange Offer is acquiring the New Notes in its ordinary
course of business and has no arrangement or understanding with any person to
participate in the distribution of the New Notes to be received in the Exchange
Offer. In this regard, the Registrant will make each person participating in the
Exchange Offer aware (through this Prospectus or otherwise) that if the Exchange
Offer is being registered for the purpose of secondary resale, any holder using
the Exchange Offer to participate in a distribution of New Notes to be acquired
in the registered Exchange Offer (i) may not rely on the staff position
enunciated in Morgan Stanley and Co. Inc. (avail. June 5, 1991) and Exxon
Capital Holding Corp. (avail. May 13, 1988) or similar letters and (ii) must
comply with registration and prospectus delivery requirements of the Securities
Act in connection with a secondary resale transaction.
ACCOUNTING TREATMENT
The New Notes will be recorded at the same carrying value as the Old Notes
as reflected in the Registrant's accounting records on the Exchange Date.
Accordingly, no gain or loss for accounting
35
<PAGE> 39
purposes will be recognized by the Registrant. The expenses of the Exchange
Offer will be expensed over the term of the New Notes.
USE OF PROCEEDS
There will be no proceeds to the Company from the Exchange Offer.
CAPITALIZATION
The following table sets forth at September 30, 1997 the historical
capitalization of the Company. This table should be read in conjunction with
"Selected Financial Data," "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital Resources," and the
more detailed financial statements and notes thereto included elsewhere in this
Prospectus. There is no anticipated effect on capitalization because of the
Exchange Offer.
<TABLE>
<CAPTION>
AT SEPTEMBER 30, 1997
-----------------------
ACTUAL
-----------------------
(DOLLARS IN THOUSANDS)
<S> <C>
Long-Term Debt:
Revolving Credit Facility................................. $ 29,996
10 3/4% Senior Subordinated Notes Due 2004................ 120,000
--------
Total long-term debt.............................. $149,996
--------
Stockholders' Equity:
Preferred Stock, 10,000,000 shares authorized, no shares
issued and outstanding; $0.01 par value................ $ --
Common Stock, 40,000,000 shares authorized, 25,615,000
issued and outstanding, $0.01 par value................ 256
Additional paid-in capital................................ 103,302
Accumulated deficit....................................... (10,706)
Deferred compensation..................................... (986)
--------
Total stockholders' equity........................ $ 91,866
--------
Total capitalization.............................. $241,862
========
</TABLE>
36
<PAGE> 40
SELECTED FINANCIAL DATA
The financial data as of and for the years ended December 31, 1992 through
1996, and as of and for the nine month periods ended September 30, 1996 and
1997, were derived from audited and unaudited consolidated financial statements
of the Company and its predecessors. Information for interim periods include in
the opinion of management all adjustments (consisting only of normal recurring
adjustments) necessary to present fairly the information set forth therein and
are not necessarily indicative of results for an entire year. The data set forth
in this table should be read in connection with "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the more detailed
financial statements and related notes included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
--------------------------------------------------- -------------------------
1992 1993 1994 1995 1996 1996 1997
----------- ------- ------- ------- ------- ----------- -----------
(UNAUDITED) (UNAUDITED) (UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Oil and gas revenue.................... $ -- $ -- $ -- $ -- $ -- $ -- $ 25,784
Interest income........................ 55 24 6 5 170 158 162
------- ------- ------- ------- ------- ------- --------
Total revenues......................... 55 24 6 5 170 158 25,946
------- ------- ------- ------- ------- ------- --------
Costs and expenses:
Operating expense.................... -- -- -- -- -- -- 17,100
General and administrative........... 121 187 290 322 2,268 1,045 3,993
Depreciation, depletion and
amortization....................... -- -- 2 5 29 20 13,232
Interest expense..................... 183 76 107 190 806 643 4,620
Net gain on future contracts......... -- -- -- -- -- -- (275)
Foreign currency exchange loss,
net................................ -- -- -- -- -- -- 1,850
------- ------- ------- ------- ------- ------- --------
Total expenses......................... 304 263 399 517 3,103 1,708 40,520
------- ------- ------- ------- ------- ------- --------
Loss before taxes...................... (249) (239) (393) (512) (2,933) (1,550) (14,574)
Income tax benefit (expense)........... -- -- -- -- (1,391) (1,769) 5,584
------- ------- ------- ------- ------- ------- --------
Net loss............................... $ (249) $ (239) $ (393) $ (512) $(4,324) $(3,319) $ (8,990)
======= ======= ======= ======= ======= ======= ========
Loss per share of common stock....... $ (0.01) $ (0.01) $ (0.02) $ (0.02) $ (0.18) $ (0.14) $ (0.35)
======= ======= ======= ======= ======= ======= ========
Weighted average shares
outstanding(a)....................... 21,000 21,000 21,000 21,000 23,411 22,957 25,612
Ratio of earnings to fixed
charges(b)........................... -- -- -- -- -- -- --
======= ======= ======= ======= ======= ======= ========
</TABLE>
<TABLE>
<CAPTION>
AT DECEMBER 31, AT SEPTEMBER 30,
-------------------------------------------------------- ----------------
1992 1993 1994 1995 1996 1997
----------- ----------- ------- ------- -------- ----------------
(UNAUDITED) (UNAUDITED) (UNAUDITED)
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA (END OF PERIOD):
Oil and gas properties, at cost.......... $4,406 $10,895 $18,944 $55,951 $123,300 $217,699
Total assets............................. 6,179 11,034 19,427 67,669 129,825 258,046
Long-term debt, including current
maturities............................. -- -- 1,400 34,385 22,842 149,996
Stockholders' equity (a)................. 4,132 8,689 15,484 23,269 100,625 91,866
</TABLE>
- ---------------
(a) RMOC became a public entity in June 1996. See Notes to Consolidated
Financial Statements -- Note 2 -- Significant Accounting Policies.
(b) For purposes of calculating the ratio of earnings to fixed charges, earnings
consist of net earnings before income taxes and fixed charges (exclusive of
capitalized interest). Fixed charges consist of interest expense (which
includes amounts capitalized and the amortization of debt discount) and that
portion of rental cost that is equivalent to interest (estimated to be
one-third of rental cost). Earnings were insufficient to cover fixed charges
by $249,000, $239,000, $393,000, $1,936,000 and $4,561,000 during the years
ended December 31, 1992, 1993, 1994, 1995 and 1996, respectively, and by
$3,178,000 and $15,307,000 during the nine months ended September 30, 1996
and 1997, respectively.
37
<PAGE> 41
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
INTRODUCTION
The following discussion is intended to assist in understanding the
Company's financial position and results of operations for each year in the
three-year period ended December 31, 1996, and for the nine-month periods ended
September 30, 1996 and 1997. The Consolidated Financial Statements and the notes
thereto should be referred to in conjunction with this discussion.
OVERVIEW
RMOC was formed when the shareholders of Rutherford Moran Exploration
Company ("RMEC") and the partners in Thai Romo exchanged their interests in the
respective entities for common shares of RMOC (the "Exchange"). As a result of
the Exchange, RMEC and Thai Romo became wholly-owned subsidiaries of the
Company. Thai Romo Holdings, Inc. ("TRH"), a wholly-owned subsidiary of the
Company, was formed in the Exchange and now directly owns the Thai Romo
interests received by the Company in the Exchange and a 46.34% interest in B8/32
Partners. RMEC was formed on September 21, 1990 for the purpose of holding an
interest in the Concession. Thai Romo is a second tier subsidiary owned by RMEC
(57%) and TRH (43%).
From September 24, 1990 until June 18, 1996, RMEC was treated as an S
Corporation under the Internal Revenue Code of 1986, as amended (the "Code"). As
such, RMEC did not incur federal income taxes at the corporate level during such
period and its taxable income or loss was passed through to its stockholders
based on their interests. Similarly, Thai Romo was treated as a partnership for
U.S. income tax purposes and Thai Romo was not subject to federal income taxes
from November 1993 to June 17, 1996. During this time, income and losses earned
by Thai Romo were passed through to the partners on the basis of their interest
in Thai Romo.
Following the Exchange, the Company completed an initial public offering
(the "IPO") of its common stock, $.01 par value (the "Common Stock"), raising
net proceeds, after deducting underwriting commissions and discounts and
offering expenses, of approximately $97 million, which was utilized to repay
outstanding debt to the Company's principal stockholders, repay bank debt and
fund capital expenditures.
As of December 31, 1996, the Company's exploration and development
activities had not generated revenues. As a result, the Company's audited
historical results of operations included herein have been presented as a
development stage company and period-to-period comparisons of such results and
certain financial data may not be meaningful or indicative of future results. In
this regard, future results of the Company will be materially dependent upon the
success of the Company's operations within Block B8/32.
Initial sales from the Tantawan Field began on February 1, 1997 and the
Company ceased being a development stage company. Natural gas and crude oil
revenues are now recorded using the entitlements method. If production volumes
received exceed the Company's ownership percentage in the property, such excess
is recorded as a liability. If production volumes are less than the Company's
entitlement, the underproduction is recorded as a receivable.
On March 3, 1997, TRH acquired 46.34% of B8/32 Partners and results for the
nine months ending September 30, 1997 include 46.34% of B8/32 Partners
operations from March 3, 1997.
The Company uses the full cost method of accounting for its investment in
oil and gas properties. Under the full cost method of accounting, all costs of
acquisition, exploration and development of oil and natural gas reserves are
capitalized into a "full cost pool" as incurred, and properties in the pool are
depleted and charged to operations using the unit-of-production method based on
the ratio of current production to total proven oil and natural gas reserves.
38
<PAGE> 42
RESULTS OF OPERATIONS
Nine Months Ended September 30, 1997, Compared with Nine Months Ended
September 30, 1996
The Company's net loss of $9.0 million or $0.35 per share for the nine
months ended September 30, 1997, increased from the Company's net loss of $3.3
million or $0.14 per share for the nine months ended September 30, 1996. The
increase in net loss is primarily due to interest expense caused by higher debt
levels, a foreign exchange loss, higher salaries and wages and administrative
expenses offset by the recognition of a tax benefit and revenues associated with
the commencement of production, net of related costs.
The Company's total revenues for the nine months ended September 30, 1997,
were $26.0 million as compared to $158,000 for the nine months ended September
30, 1997. Oil and gas revenues were $25.8 million and interest income was
$162,000 for the nine months ended September 30, 1997. See "Foreign Currency
Fluctuations." Production volumes for the nine months ended September 30, 1997,
before royalties, were 586,904 barrels of oil and 9,436,471 Mcf of gas, compared
to no production volumes previously.
Operating expenses incurred for the nine months ended September 30, 1997,
were $17.1 million as compared to no operating expenses previously.
Depreciation, depletion and amortization expense recorded for the nine
months ended September 30, 1997, was $13.2 million as compared to $20,000 for
the nine months ended September 30, 1996. This increase is due to the
commencement of production during February 1997.
Interest expense of $4.6 million for the nine months ended September 30,
1997, increased from $643,000 for the nine months ended September 30, 1996. This
increase is due to an increase in borrowings and the amortization of deferred
financing costs. Outstanding debt at September 30, 1997, was $150 million as
compared to $2 million at September 30, 1996. During the nine months ended
September 30, 1997 and 1996, $733,000 and $1.6 million, respectively, of
interest expense was capitalized to unproven properties.
Salaries and wages of $837,000 and other general administrative expenses
were $3.2 million for the nine months ended September 30, 1997, compared to
$273,000 and $772,000, respectively, for the nine months ended September 30,
1996. This increase is primarily due to the capitalization of a greater portion
of salaries and wages and costs in 1996 compared to 1997. Additionally, there
was an increase in personnel during the third and fourth quarters of 1996
resulting in higher administrative costs for 1997 compared to 1996.
Year Ended December 31, 1996, Compared with Year Ended December 31, 1995
The Company's net loss of $4.3 million for the twelve months ended December
31, 1996 increased from a net loss of $512,000 for the twelve months ended
December 31, 1995 due primarily to increases in deferred income taxes caused by
a one time non-cash charge of $1.9 million, increases in general and
administrative expenses and less significantly due to increases in interest
expense, and salaries and wages, offset partially by an increase in interest
income.
Because RMEC and Thai Romo became part of the Company's consolidated
federal tax return following the Exchange, RMEC and Thai Romo recorded an income
tax expense and a corresponding deferred tax liability of $1.9 million for the
difference between the book basis and tax basis of oil and gas properties on
June 17, 1996. This charge was offset by a tax benefit of $530,000 recorded in
the third and fourth quarters related to the Company's losses.
Interest income of $170,000 for the twelve months ended December 31, 1996,
increased from $5,000 for the twelve months ended December 31, 1995. This
increase is due to the increase in available cash from the proceeds of the IPO.
39
<PAGE> 43
Interest expense of $806,000 for the twelve months ended December 31, 1996,
increased from $190,000 for the twelve months ended December 31, 1995. This
increase was caused by increases in outstanding debt and in the amortization of
deferred financing costs.
Salaries and wages of $535,000 and other general and administrative
expenses of $1.7 million, for the twelve months ended December 31, 1996,
increased from to $114,000 and $208,000, respectively, for the twelve months
ended December 31, 1995. These increases are primarily due to the capitalization
of a greater portion of salaries and wages and direct costs related to oil and
gas property development in 1995 compared to 1996 and, to a lesser extent, an
increase in compensation expense.
Year Ended December 31, 1995, Compared with Year Ended December 31, 1994
The Company's net loss of $512,000 in 1995 increased compared to the
Company's net loss of $393,000 in 1994 due to increases in interest expense and
general and administrative expenses.
Noncapitalized interest expense of $190,000 for 1995 increased compared to
$107,000 in 1994. This increase is due to the significant incurrence of debt
under loans from banks and stockholders. Balances under such loan facilities
were $42.9 million and $2.9 million at December 31, 1995 and 1994, respectively.
General and administrative expenses (excluding salaries and wages) of
$208,000 for 1995 increased from $181,000 in 1994. This increase was due to
increased legal costs incurred for general corporate purposes.
Year Ended December 31, 1994, Compared with Year Ended December 31, 1993
The Company's net loss of $393,000 in 1994 increased from a net loss of
$239,000 in 1993 due to increases in interest expense and general and
administrative expenses.
Interest expense of $107,000 for 1994 increased from $76,000 in 1993. This
increase was due to an increase in variable interest rates from 1993 to 1994.
General and administrative expenses (excluding salaries and wages) of
$181,000 for 1994 increased from $74,000 in 1993. This increase was due to
additional rent and additional legal fees incurred for general corporate
purposes.
LIQUIDITY AND CAPITAL RESOURCES
From the Company's inception on September 21, 1990 through December 31,
1996, the Company invested approximately $123 million primarily in development
and exploration activities conducted in Block B8/32 and the acquisition of
interests in or rights to the Concession. During this period, the Company had
negative operating cash flow. Since its inception, the Company has financed its
growth through a combination of equity infusions by its principal stockholders
(primarily Messrs. Rutherford and Moran), bank and stockholder loans, the sale
of common stock and, most recently the issuance of the Old Notes.
In June 1996, the Company completed the IPO which resulted in RMOC raising
net proceeds of approximately $97 million. The proceeds were used to repay
outstanding debt to the Company's principal stockholders, repay bank debt, and
fund capital expenditures.
On September 20, 1996, the Company entered into a $150 million Revolving
Credit Facility (the "Revolving Credit Facility") with a group of commercial
lenders. The Revolving Credit Facility matures on September 30, 1999 and
contains a borrowing base limitation, which was $120 million at June 30, 1997
and was reset at $60,000,000 upon the completion of the Offering. The Revolving
Credit Facility is secured by the stock of certain subsidiaries of the Company
and TRH's 46.34% stock interest in B8/32 Partners.
40
<PAGE> 44
Under the terms of the Revolving Credit Facility, outstanding borrowings
will bear interest at either the Base Rate (defined as the greater of the
Federal Funds Rate plus 0.5% or the agent bank's prime rate) plus 1.25% or the
Eurodollar Rate (defined as an average of the LIBOR of two banks) plus 2.75%, at
the Company's option. Interest is payable quarterly. The Company is also
assessed a commitment fee equal to 0.5% per annum on the average daily balance
of the unused borrowing base. The Revolving Credit Facility provides for
semi-annual borrowing base redeterminations and contains certain covenants,
including limitations on additional indebtedness, limitations on payment of
dividends and an interest coverage ratio. At September 30, 1997, $30 million was
outstanding under the Revolving Credit Facility at annual interest rates ranging
from 7.375% to 7.4375%. See "Description of Revolving Credit Facility."
RMOC financed the MOTL Acquisition primarily by borrowing $20 million under
an additional credit agreement with one of the lenders under the Revolving
Credit Facility. The Company financed the remainder of the MOTL Acquisition
through its Revolving Credit Facility. The Company repaid the amount due under
the additional credit agreement with increased borrowings under the Revolving
Credit Facility following a redetermination of the borrowing base and such
additional credit agreement was terminated.
In anticipation of the Offering, the Company borrowed $5 million under the
Credit Agreement from one of the lenders under its Revolving Credit Facility.
The Credit Agreement bore interest at the Base Rate plus 3/4% and was repaid
upon the closing of the Offering.
On September 29, 1997, the Company issued $120 million of the Old Notes.
The net proceeds from this offering were used to repay $93 million of
outstanding debt under the revolving Credit Facility and the Credit Agreement
and to purchase a portfolio of U.S. Government obligations of approximately $24
million, which is sufficient to provide for payment in full when due, the first
four scheduled interest payments on the Notes. Since the completion of the
Offering, the Company has been funding its operations from internally generated
cash flow and additional borrowings under its Revolving Credit Facility, under
which $16 million was available at November 10, 1997. As of September 30, 1997,
the Company was not in compliance with the covenant requiring the Company to
maintain an EBITDA to interest coverage ratio of 1.5:1 for the quarter ending
September 30, 1997, however such non-compliance has been waived by its lenders.
The Company is currently in the process of arranging an amended Revolving Credit
Facility with certain of the lenders, subject to final approval of those lenders
and completion of satisfactory documentation, to provide for a fixed borrowing
base of $150 million until September 30, 1998 (or on the completion of certain
new financings or other specified events, if earlier). The amended Facility will
provide that the Company pay interest at rates based on a margin of 1.75% over
LIBOR if the aggregate outstanding principal amount of loans is less than or
equal to $60 million and a margin of 2.75% over LIBOR for if the outstandings
are greater than $60 million. Alternatively, the Company may pay a margin over
the prime rate of 0.25% and 1% respectively, for similar levels of borrowings.
As of September 30, 1998 and semi-annually thereafter, the borrowing base will
be redetermined by the lenders on customary industry terms based upon the
Company's then current reserve base. Bank borrowings in excess of the
redetermined borrowing base, if any, will have to be repaid upon such
redetermination.
To explore and develop Block B8/32, the Company anticipates capital
expenditures of approximately $125 million for all of 1997, which includes
approximately $28.6 million for the MOTL Acquisition. Approximately $46 million
is being spent for development of the Tantawan Field and $36 million is being
spent in the Benchamas Field. In addition to such capital expenditures, the
Company expects to incur additional cash expenses, including interest, and
working capital requirements of approximately $27 million. The Company currently
expects capital expenditures for 1998 to be in the range of $110 million to $120
million, of which approximately 70% is budgeted for production facilities
primarily in the Benchamas Field.
During the remainder of 1997, the Company expects to fund its obligations
primarily through net cash flow from operations and additional borrowings under
the Revolving Credit Facility assuming the
41
<PAGE> 45
Revolving Credit Facility is amended as described above. To continue the current
expected level of capital expenditures, the Company believes it will have to
obtain substantial additional sources of funds, the cost of some of which may be
higher than the Company's current cost of funds. The Company believes it can
raise adequate funds at an acceptable cost to permit it to meet its capital
commitments. See "Risk Factors -- Substantial Capital Requirements".
FOREIGN CURRENCY FLUCTUATIONS
The Company does not currently hold significant amounts of cash, cash
equivalents, long-term financial instruments or investments denominated in
foreign currencies. However, all of its gas revenues are denominated in Thai
Baht. For many years, the Thai Baht/U.S. dollar exchange rate has been stable,
as the Baht was linked to a basket of currencies, primarily the U.S. Dollar. On
July 2, 1997 the Thai government decided to allow the value of the Baht to be
determined by market forces. Since the announcement, the value of the Thai Baht
has declined against the U.S. Dollar by approximately 50%. The Company's Gas
Sales Agreement contains an adjustment factor which should insulate the Company
from much of the impact of the declining value of the Baht. The Company believes
that these reductions in US dollar realizations since July 2, 1997 should be
substantially recouped over time based upon other adjustment factors in the Gas
Sales Agreement. The Company will consider instruments intended to mitigate the
foreign currency risks associated with such revenues through currency rate
hedging transactions such as options, futures or other derivative financial
instruments. The Revolving Credit Facility imposes certain limitations on such
transactions. See "Risk Factors -- International Operations and Currency
Exchange Rates."
CHANGING OIL PRICES
The Company is dependent on crude oil prices, which have historically been
volatile. The Company has used crude oil price swaps and other similar
arrangements to hedge against potential adverse effects of fluctuations in
future prices for the Company's future oil production. While the swaps are
intended to reduce the Company's exposure to declines in the market price of
crude oil, they may limit the Company's gain from increases in the market price.
At December 31, 1996, crude oil price swap agreements were in place for the
Company's oil production of 1.0 MMbbl of aggregate oil volumes for April through
December 1997 at a weighted average price of $15.92 per Bbl and 1.75 MMbbl of
aggregate oil volumes for January through December 1998 at a weighted average
price of $15.92 per Bbl. At December 31, 1996 and October 3, 1997, the Company
estimated the cost of unwinding this position to be $8.5 million and $8.0
million, respectively. Coincident with the crude oil price swaps, the Company
has sold to the affiliate of a lender a swap option for 1.25 MMbbl of aggregate
oil volumes for January through December 1999 at a price of $18.30 per Bbl. The
Company has accounted for the swap option separately as it does not qualify as a
hedge. Changes in value of the swap option are recorded in the statement of
operations. At December 31, 1996 and September 30, 1997, the Company estimates
the cost of this position to be $1.4 million and $1.2 million, respectively, and
has recorded such amount as a liability on its balance sheet.
NEW ACCOUNTING PRONOUNCEMENTS
Effective December 1997, the Company will be required to adopt Statement of
Financial Accounting Standards No. 128, "Earnings per Share" ("SFAS 128"). SFAS
128 introduces the concept of basic earnings per share, which represents net
income divided by the weighted average common shares outstanding without the
dilutive effects of common stock equivalents (options, warrants, etc.). Diluted
earnings per share, giving effect for common stock equivalents, will be reported
when SFAS 128 is adopted in the fourth quarter of 1997. The impact of adopting
SFAS 128 is anticipated to be immaterial.
Effective December 1997, the Company will be required to adopt the
Statement of Financial Accounting Standards No. 129, "Disclosure of Information
about Capital Structure" ("SFAS 129"). SFAS 129 requires that all entities
disclose in summary form within the financial statement the pertinent rights and
privileges of the various securities outstanding. An entity is to disclose
within the financial
42
<PAGE> 46
statement the number of shares issued upon conversion, exercise, or satisfaction
of required conditions during at least the most recent annual fiscal period and
any subsequent interim period presented. Other special provisions apply to
preferred and redeemable stock. The Company's adoption of SFAS 129 in the fourth
quarter of 1997 is not expected to have a material impact on reported results.
In June 1997, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standards No. 130, "Reporting Comprehensive
Income" ("SFAS 130"), which establishes standards for reporting and display of
comprehensive income and its components. The components of comprehensive income
refer to revenues, expenses, gains and losses that are excluded from net income
under current accounting standards, including foreign currency translation
items, minimum pension liability adjustments and unrealized gains and losses on
certain investments in debt and equity securities. SFAS 130 requires that all
items that are recognized under accounting standards as components of
comprehensive income be reported in a financial statement displayed in equal
prominence with the other financial statements; the total of other comprehensive
income for a period is required to be transferred to a component of equity that
is separately displayed in a statement of financial position at the end of an
accounting period. SFAS 130 is effective for both interim and annual periods
beginning after December 15, 1997, at which time the Company will adopt the
provisions. The Company does not expect SFAS 130 to have a material impact on
reported results.
In June 1997, the FASB issued Statement of Financial Accounting Standards
No. 131, "Disclosures about Segments of an Enterprise and Related Information"
("SFAS 131"). SFAS 131 establishes standards for the way public enterprises are
to report information about operating segments in annual financial statements
and requires the reporting of selected information about operating segments in
interim financial reports issued to shareholders. It also establishes standards
for related disclosures about products and services, geographic areas, and major
customers. SFAS 131 is effective for periods beginning after December 15, 1997,
at which time the Company will adopt the provisions. The Company does not expect
SFAS 131 to have a material effect on its reported results.
43
<PAGE> 47
BUSINESS AND PROPERTIES
GENERAL
The Company is a United States independent exploration and production
company engaged in the acquisition, exploration, development and production of
oil and gas properties in Southeast Asia. Currently, the Company's exploration
and development activities are conducted entirely in the Gulf of Thailand
through its subsidiary, Thai Romo, and its affiliate, B8/32 Partners. The
Company also reviews from time to time additional exploration opportunities in
other areas of Southeast Asia.
As of July 1, 1997, the Company had net proven reserves of 327 Bcfe, 50% of
which were in the Tantawan Field and 50% of which were in the Benchamas Field.
This estimate only includes proven reserves with respect to 2 of the 12
successful wells drilled in the first half of 1997. In addition, appraisal wells
drilled by the Concessionaires in three of the four established areas within the
Block (Tantawan, Benchamas and Pakakrong) have tested at commercial flow rates
of hydrocarbons. These wells, along with the wells in the Maliwan area, have
encountered an average of 204 feet of net hydrocarbon pay. Together, they have
established the potential for significant additional proven reserves in these
four areas in the Block. Pursuant to the GSA, the Concessionaires have agreed to
sell natural gas from the Tantawan Field to PTT. The Company expects that this
agreement will be amended to incorporate production from the Benchamas Field. On
November 14, 1996, the Concessionaires signed the MOU with PTT to sell crude oil
production from the Tantawan Field. In early July, the Company had its first oil
lifting from the Tantawan Field and sold 278,000 barrels of oil pursuant to the
MOU. In October 1997, the Company and the other Concessionaires received
permission from the Thai Department of Mineral Resources to export crude oil
produced from the Block and sold its second oil lifting for U.S. dollars to a
third party purchaser for export. The Company expects that the Concessionaires
will continue to sell their crude oil for U.S. dollars to a number of purchasers
at market prices. As a result, the Company expects that the MOU with PTT will be
terminated. Crude oil and natural gas production in the Tantawan Field commenced
in February 1997 while production is anticipated to commence from the Benchamas
Field in 1999. See "--Marketing and Contracts."
Current interests in the Block are as follows:
<TABLE>
<CAPTION>
BLOCK
B8/32(1)
----------
<S> <C>
RMOC (through Thai Romo Limited/Thai Romo Holdings, Inc.)... 46.34%
Pogo Producing Company (through Thaipo Limited)............. 46.34%
Palang Sophon, Limited...................................... 7.32%
</TABLE>
- ---------------
(1) Ownership interests include ownership through each entity's proportionate
ownership in B8/32 Partners.
The Company's principal executive offices are located at 5 Greenway Plaza,
Suite 220, Houston, Texas 77046 and the Company's telephone number is (713)
622-5555.
HISTORY OF BLOCK B8/32
In 1988, Mr. Rutherford and Mr. Moran formed a venture to pursue
exploration opportunities in the Gulf of Thailand. In August 1991, Thai Romo,
Thaipo and MOTL were awarded Petroleum Concession No. I /2534/36 for Block B8/32
in the central portion of the Gulf of Thailand. Subsequent to the award,
Sophonpanich Co. Limited ("Sophonpanich"), Palang's predecessor, became one of
the Concessionaires by acquiring an interest in the Concession as a co-venturer.
MOTL was designated as the Block's operator pursuant to a Joint Operating
Agreement among the Concessionaires (the "JOA"). See "-- Operating Agreements."
The Company completed its IPO and consummated the Exchange in June 1996. As
a result of the Exchange, the Company became the parent of RMEC and TRH, which
collectively own all of the
44
<PAGE> 48
outstanding interests, except for certain nominal interests, in Thai Romo and
46.34% of B8/32 Partners. The prior owners of Thai Romo and RMEC received shares
of Common Stock in the Exchange.
The Company, Pogo, Palang and B8/32 Partners are the current
Concessionaires. The Company originally owned a 31.67% interest in the Block. In
March 1995, Thai Romo, Thaipo and Sophonpanich acquired MOTL's interest in the
Tantawan Field of Block B8/32. Thaipo was designated as operator of the Tantawan
Field. The Ministry of Industry of Thailand approved the transfer of the
interest and the designation of a separate operator for the Tantawan Field
effective March 1995. Thaipo, Thai Romo and Sophonpanich agreed that the
Tantawan Field would be operated pursuant to the terms of a separate Joint
Operating Agreement (the "Tantawan JOA") with provisions substantially similar
to those of the original JOA.
On December 19, 1996, RMOC exercised its preferential right to purchase
46.34% of the outstanding shares of MOTL. Prior to such time, MOTL owned 31.67%
interest in all areas of the Block except the Tantawan Field. Pogo and Palang
purchased the remaining 53.66% of MOTL stock. In March 1997, Thaipo was
designated to replace MOTL as operator for the remainder of the Block.
In accordance with the Thai Petroleum Act, the Concessionaires relinquished
50% of the exploration acreage of the Block on August 1, 1995. The Concession
agreement provided for a six-year exploration period ending on July 31, 1997,
which would have required relinquishment of the remaining exploration acreage.
However, in May 1997, the Concessionaires received an extension of the
exploration period to July 31, 2000. In light of this extension and the fact
that three production licenses have been approved or applied for, the
Concessionaires were only required to relinquish approximately 590,000 acres of
the then remaining exploration acreage on August 1, 1997. The Company believes
that the Concessionaires did not lose any attractive exploration acreage as a
result of the required relinquishment. The retained exploration acreage can be
retained after July 31, 2000 by payment of annual lease rentals.
On August 23, 1995, the Thai Petroleum Committee of the Department of
Mineral Resources and the Ministry of Industry designated the Tantawan Field for
production. The Tantawan Field covers approximately 68,000 acres in the Block.
In January 1997, the Concessionaires made formal application for a production
license covering the Benchamas Field and a portion of the Pakakrong area, which
application was approved in June 1997 by the Thai Ministry of Industry. In
November 1997, the Concessionaires received from the Ministry of Industry a
production license covering approximately 91,000 acres in the Maliwan area.
ENERGY DEMAND IN THAILAND
From 1992 to 1996, Thailand's real gross domestic product ("GDP") increased
at an average annual growth rate of approximately 8.1%, and increased 6.7% in
1996. According to Thailand's National Energy Policy Office, energy demand
increased at a compound annual growth rate of approximately 11% from 1992 to
1996. Energy growth in excess of GDP growth reflects the nature of Thailand's
economy, which is characterized by increasing per capita energy consumption and
increasing industrialization. To meet the country's energy demand and reduce its
dependence on imported oil, Thailand's Deputy Prime Minister and Minister of
Industry recently outlined a program for the development of new sources of
natural gas. The new program gives the highest priority to the expansion of
domestic offshore natural gas supplies, ahead of the secondary priority of
enhancing imports from neighboring Asian countries. Much of the annual increase
in domestic Thai oil and gas supply over the next five years is expected to be
provided by new sources of oil and gas from the Gulf of Thailand. See "Risk
Factors -- Thai Economy."
CURRENT FIELDS AND PROSPECTS
The Company has identified a number of exploration and development
opportunities within Block B8/32, which include Tantawan, Benchamas, Pakakrong,
Maliwan and North Benchamas.
45
<PAGE> 49
Tantawan
Through June 30, 1997, the Company has participated in drilling a total of
23 development and 18 exploration wells in the Tantawan Field, of which all but
one have encountered hydrocarbons. Of the 40 wells that encountered
hydrocarbons, 36 are deemed capable of commercial flow rates. All of these
successful wells were drilled in roughly the southern third of the Tantawan
Field and have encountered an average of 170 feet of net hydrocarbon pay.
In August 1996, the Concessionaires set the "A" and "B" 12-slot production
platforms and mobilized two drilling rigs to tie-back and complete a total of 18
wells. To facilitate moving the natural gas and crude oil to market, the
operator participated in a long term lease for an oceangoing tanker, the T/T
Bayern. The vessel, recommissioned as the Tantawan Explorer, was delivered in
December 1996, and is currently the only FPSO vessel in the Gulf of Thailand.
Production from the Tantawan Field commenced in February 1997 and through June
30, 1997 has averaged 79 MMcf and 5,050 Bbls per day (36.6 MMcf and 2,340 Bbls
per day net to the Company's working interest).
During 1996, Thai Romo and its partners began construction of the 9-slot
"C" platform, which arrived on-site in the second quarter of 1997. Production
began in August 1997 from 9 wells. In October 1996, the Concessionaires signed a
contract for the construction of a second 9-slot "D" platform, which was
installed in August, 1997. The Company expects to drill 8 additional wells in
the Tantawan Field in the second half of 1997.
Benchamas
As of June 30, 1997, the Company had participated in drilling 13
exploration wells, all of which were hydrocarbon bearing and 12 of which were
considered to be commercially viable. The wells encountered an average of 225
feet of net hydrocarbon pay. The Company expects to drill approximately 6
additional wells in the Benchamas Field in the second half of 1997. The Company
also expects to conduct an active program of development drilling in the
Benchamas Field in 1998.
In June 1997, the Concessionaires' formal application to Thailand's
Department of Mineral Resources for a production license to produce from the
Benchamas Field and a portion of the Pakakrong area was approved. This plan of
development contemplates the installation of satellite platforms, a central
processing facility platform and an FSO. It is anticipated that production from
the Benchamas Field will be sold under similar terms to those applicable to the
Tantawan Field.
Pakakrong
In late 1995, a 100 square mile 3-D seismic survey of the Pakakrong
prospect was acquired, processed and interpreted. The prospect is centered 8.5
miles southwest of the Benchamas-1 well. Production tests in the two Pakakrong
wells drilled in early 1996 have established potential commercial reservoirs at
depths considerably shallower than found to date elsewhere within the Block. The
production license application which has been approved includes the Pakakrong
area. The Company does not expect to drill any additional wells in the Pakakrong
area in the second half of 1997.
Production tests conducted in Pakakrong-1 at a depth of 4,900 feet yielded
cumulative flow rates of 25.5 MMcfd of natural gas and 0.7 Mbpd of oil and
condensate. Production tests in the Pakakrong-2 well were conducted at a depth
of 4,200 feet and yielded a flow of 1.6 Mbpd. Based on seismic interpretation,
it is believed that this zone may be the same zone observed but not tested in
the Pakakrong-1 well located one mile northwest.
Maliwan
Through June 30, 1997, two successful exploration wells have been drilled
in the Maliwan area, located between the Tantawan and Benchamas Fields. The
first well encountered 110 feet of net hydrocarbon pay and the second
encountered 297 feet of net hydrocarbon pay. Additional exploration and
delineation drilling, as well as a complete geological and geophysical
assessment, will be required
46
<PAGE> 50
before proven reserves can be determined and development plans formulated. In
November 1997, the Concessionaires received from the Ministry of Industry a
production license covering approximately 91,000 acres in the Maliwan area. The
Company expects to drill 2 additional wells in the Maliwan area in the second
half of 1997. The Company expects to have an active program of exploratory
drilling in the Maliwan area in 1998.
North Benchamas
A 120 square-mile 3-D survey of the North Benchamas prospect was conducted
during the fourth quarter of 1996. Through June 30, 1997, the Concessionaires
have drilled three exploration wells in the North Benchamas area of the Block
which is located north of the Benchamas Field. Two of the three wells
encountered a total of 88 feet of net hydrocarbon pay, which, although
non-commercial, demonstrated the northern extension of hydrocarbons on the
Block. The third exploration well encountered a significant amount of reservoir
quality sands which were non-hydrocarbon bearing and was plugged and abandoned.
The Company plans to reevaluate the North Benchamas area after further
examination and refinement of the seismic data.
RESERVES
The table below summarizes the Company's net proven oil (including
condensate and crude oil) and natural gas reserves and net present value (NPV)
discounted at 10% by field as of July 1, 1997, as estimated by Ryder Scott,
inclusive of the impact of the crude oil hedges in place:
<TABLE>
<CAPTION>
NPV
NATURAL BEFORE % OF
OIL GAS TOTAL INCOME TAX TOTAL
FIELD (Mbbl) (MMcf) (MMcfe) ($ IN 000'S) NPV
----- ------ ----------- ------- ------------ -----
<S> <C> <C> <C> <C> <C>
Tantawan....................................... 10,727 97,751 162,112 $122,794 64%
Benchamas...................................... 15,973 69,110 164,949 68,184 36
------ ------- ------- -------- ---
Total................................ 26,700 166,861 327,061 $190,978 100%
====== ======= ======= ======== ===
</TABLE>
The following table sets forth estimates of the net proven oil (including
condensate and crude oil) and natural gas reserves of the Company at July 1,
1997, as determined by Ryder Scott:
<TABLE>
<CAPTION>
OIL (Mbbl) NATURAL GAS (MMcf) NATURAL GAS EQUIVALENTS (MMcfe)
-------------------------------- --------------------------------- ---------------------------------
DEVELOPED UNDEVELOPED TOTAL DEVELOPED UNDEVELOPED TOTAL DEVELOPED UNDEVELOPED TOTAL
--------- ----------- ------ --------- ----------- ------- --------- ----------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Tantawan............. 4,897 5,830 10,727 41,943 55,808 97,751 71,325 90,787 162,112
Benchamas............ -- 15,973 15,973 -- 69,110 69,110 -- 164,949 164,949
----- ------ ------ ------ ------- ------- ------ ------- -------
Total............ 4,897 21,803 26,700 41,943 124,918 166,861 71,325 255,736 327,061
===== ====== ====== ====== ======= ======= ====== ======= =======
</TABLE>
The Company has not filed any different estimates of its July 1, 1997
reserves with any federal agency.
The reserve data set forth in this Prospectus represents only estimates.
Reserve engineering is a subjective process of estimating underground
accumulations of crude oil and natural gas that cannot be measured in an exact
manner. The accuracy of any reserve estimate is a function of the quality of
available data and of engineering and geological interpretation and adjustment.
As a result, estimates of different engineers often vary. In addition, results
of drilling, testing and production subsequent to the date of an estimate may
justify revision of such estimates. Accordingly, reserve estimates often differ
from the quantities of crude oil and natural gas that are ultimately recovered.
Estimates of economically recoverable crude oil and natural gas reserves and of
future net revenues are based upon a number of variables and assumptions, all of
which may vary considerably from actual results. The reliability of such
estimates is highly dependent upon the accuracy of the assumptions upon which
they were based.
47
<PAGE> 51
In preparing the July 1, 1997 reserve estimate, Ryder Scott effected a
roll-forward from the January 1, 1997 proven reserve estimates by adjusting for
the MOTL Acquisition and by adding proven reserves with respect to only two
additional wells drilled early in 1997. In preparing the July 1, 1997 estimates,
Ryder Scott used $15.92 per Bbl of oil for volumes produced in 1997 and 1998 to
reflect the crude oil price swaps then in effect. Beginning in 1999, an oil
price of $18.72 per Bbl of oil was used. The gas price of $2.13 per Mcf of gas
was calculated by the terms of the Company's GSA with PTT. The roll-forward also
reflects production volumes and operating expenses which Ryder Scott estimated
at January 1, 1997 for the first half of 1997. In preparing the July 1, 1997
roll-forward, the Company also provided Ryder Scott with an updated estimate for
capital expenditures expected for the second half of 1997 as well as for 1998
and 1999.
The following table sets forth, at July 1, 1997, the discounted net present
value attributable to the Company's estimated net proven reserves at that date,
as estimated by Ryder Scott and adjusted for the impact on pricing of the crude
oil hedges in place:
<TABLE>
<CAPTION>
TANTAWAN BENCHAMAS TOTAL
--------- --------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Future cash flows.............................. $ 402,575 $ 445,881 $ 848,456
--------- --------- ---------
Future production costs........................ 160,578 66,044 226,622
Future development costs....................... 49,061 150,429 199,490
--------- --------- ---------
Total future costs............................. 209,639 216,473 426,112
--------- --------- ---------
Future net cash inflows........................ 192,936 229,408 422,344
Discount at 10% per annum...................... (70,142) (161,224) (231,366)
--------- --------- ---------
Present value of estimated future net cash
flows, before income taxes................... $ 122,794 $ 68,184 $ 190,978
========= ========= =========
</TABLE>
In computing this data, assumptions and estimates have been utilized, and
no assurance can be given that such assumptions and estimates will be indicative
of future economic conditions. The future net cash inflows are determined by
using estimated quantities of proven reserves and the periods in which they are
expected to be developed and produced based on July 1, 1997 economic conditions.
The estimated future production is priced at prices the Company estimated it
would have received at July 1, 1997, including the impact of crude oil hedges in
place, except where fixed and determinable price escalations or oil hedges are
provided by contract. The resulting estimated future gross revenues are reduced
by estimated future costs to develop and produce the proven reserves based on
July 1, 1997 cost levels, but not for debt service and general and
administrative expenses.
ACREAGE AND PRODUCTIVE WELLS
Acreage
The following table sets forth the Company's developed and undeveloped
acreage position at June 30, 1997:
<TABLE>
<CAPTION>
DEVELOPED UNDEVELOPED
ACREAGE ACREAGE(1) TOTAL(1)
-------------- -------------- --------------
GROSS NET GROSS NET GROSS NET
------ ---- ------ ---- ------ ----
(IN THOUSANDS) (IN THOUSANDS) (IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Gulf of Thailand...................... 68 31 1,249 579 1,317 610
</TABLE>
- ---------------
(1) A portion of this acreage was relinquished as of August 1, 1997. See
"-- Overview of Gulf of Thailand and Block B8/32."
48
<PAGE> 52
Productive Wells
At June 30, 1997, the Company owned interests in the following wells
capable of production pending completion and installation of production
facilities:
<TABLE>
<CAPTION>
GROSS NET
----- ----
<S> <C> <C>
Oil and Gas Wells........................................... 52 21.5
</TABLE>
DRILLING ACTIVITY
The following table sets forth the number of gross and net productive and
dry development wells and exploratory wells drilled by the Company during the
years indicated:
<TABLE>
<CAPTION>
GROSS GROSS NET NET
DEVELOPMENT EXPLORATORY DEVELOPMENT EXPLORATORY
WELLS WELLS WELLS WELLS
---------------- ---------------- ---------------- ----------------
YEAR SUCCESSFUL DRY SUCCESSFUL DRY SUCCESSFUL DRY SUCCESSFUL DRY
---- ---------- --- ---------- --- ---------- --- ---------- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1997 (through June
30)................... 5 -- 8 4 2.3 -- 3.7 1.9
1996.................... 9 2 13 -- 4.2 0.9 5.0 --
1995.................... 7 -- 3 1 3.2 -- 0.9 0.5
1994.................... -- -- 4 1 -- -- 1.3 0.3
1993.................... -- -- 2 2 -- -- 0.6 0.6
1992.................... -- -- 1 -- -- -- 0.3 --
---------- --- ---------- --- ---------- --- ---------- ---
Total................. 21 2 31 8 9.7 0.9 11.8 3.3
========== === ========== === ========== === ========== ===
</TABLE>
PRODUCTION FACILITIES
Under the first phase of the development plan for the Tantawan Field, two
platforms and production facilities were installed prior to first production,
with planned installation of two additional platforms during the remainder of
1997. The oil and natural gas is separated on each platform and processed on the
FPSO, which was delivered in December 1996. Oil is exported via tankers, and gas
is discharged into a 33-mile spur pipeline owned by PTT. Production of oil and
gas commenced in February 1997.
Platforms. The first two production platforms are four-pile, twelve slot
units designed for drilling with either a jack-up or tender assisted rig.
Wellhead fluids are separated at each production platform into three streams:
high pressure gas, intermediate pressure gas and low pressure oil and water. As
required, natural gas is drawn off the intermediate pressure system, compressed,
and fed back down the wells to provide gas lift to optimize oil recovery.
Hydrocarbons are fed into flowlines, which run between each platform and a
Pipeline End Manifold ("PLEM") located at the FPSO.
Floating Production, Storage and Offloading Vessel. The FPSO was used to
facilitate a fast track development of the Tantawan Field and provide cost
savings given the lack of an offshore oil pipeline infrastructure. The FPSO used
for the Tantawan development is under the management of an affiliate of Single
Buoy Moorings Inc. ("SBM"), one of the largest builders and operators of FPSOs.
Another affiliate of SBM, Tantawan Production B.V., leases the FPSO under a
Bareboat Charter Agreement (the "Charter") to Tantawan Services L.L.C. ("TS"), a
subsidiary of Thaipo. SBM paid all FPSO costs (including the vessel, detailed
design engineering and all equipment purchased for the FPSO) and recovers them
through the bareboat charter day rate over the term of the Charter. The initial
term of the Charter, which commenced in February 1997, is for 10 years, subject
to extension. In addition, TS has a purchase option on the FPSO throughout the
term of the Charter. TS has also contracted with another company, SBM Marine
Services Thailand Ltd. ("FPSO Operator"), an affiliate of SBM, to operate the
FPSO on a reimbursable basis throughout the initial term of the Charter.
Performance of both the Charter and the agreement to operate the FPSO are
non-recourse to TS and the Company. However, TS's performance is secured by a
lien on any hydrocarbons stored on the FPSO and is guaranteed severally by each
of the Tantawan Concessionaires. The Company's guarantee is limited to its
percentage interest in the Tantawan Field (currently 46.34%).
49
<PAGE> 53
The FPSO production facilities include process facilities for separation
and treatment of fluids and compressors for gas. This equipment is very similar
to that utilized on conventional fixed platforms, except that the equipment can
function while subjected to the roll and pitch of the FPSO. The production
system is capable of processing 150 MMcfd (expandable to 300 MMcfd) of natural
gas, 50 Mbpd of crude oil and condensate and 25 Mbpd of water. Oil and
condensate is processed to an export quality for storage on the FPSO and then
offloaded to shuttle tankers. Natural gas is dehydrated and compressed for
export via an existing 24-inch 33-mile spur pipeline. Water is treated to below
20 parts per million of oil in water and discharged overboard. The Company
believes the FPSO has sufficient production capacity to accommodate anticipated
production from the Tantawan field.
The FPSO provides sufficient storage for optimum offloading of oil to
export tankers and contains spare capacity in the event of unscheduled delays in
tanker arrival. The FPSO can store 1,000 Mbbl, including 700 Mbbl of saleable
crude. The FPSO must store 200 Mbbl of ballast water to control hull stresses
and 100 Mbbl of capacity will be used to store oily water that does not meet the
discharge concentration criteria. Oil stored on the FPSO is offloaded
periodically to export tankers using the tandem system, in which the tankers are
moored end to end. PTT provides the offtake tankers.
The FPSO Operator operates and maintains the FPSO. Thaipo provides a
limited number of crew members to manage platform and well operations. The crew
members, along with the FPSO Operator's personnel, are housed on the FPSO.
Benchamas/Pakakrong Production Facilities. The first phase development plan
for the Benchamas/Pakakrong field will include the installation of three
satellite wellhead platforms, a central processing facility with a daily
capacity of 150 MMcf of natural gas, 25 Mbbls of oil and condensate and 25 Mbbls
of water and a living quarters structure. Full wellstream production will flow
through a gathering system to the central processing facility where the natural
gas, oil and water will be separated. The natural gas will be dehydrated,
metered and compressed for delivery through a 16-inch 32 mile pipeline which
will tie directly into the existing spur pipeline from the Tantawan Explorer.
The produced oil and condensate will be stored on a floating storage and
offloading vessel ("FSO") to be moored in the field. Oil in the FSO will be
offloaded periodically to export tankers. This development plan will have to be
financed by the Concessionaires. It is currently estimated that the first phase
development facilities and equipment will cost $245 million ($113.5 million net
to the Company). See "Risk Factors -- Substantial Capital Requirements" and
"Risk Factors -- Dependence on Third-Party Operator."
MARKETING AND CONTRACTS
Gas Sales Agreement. Under the terms of the 30-year Concession agreement,
the Kingdom of Thailand or a state organization as stipulated by the Kingdom of
Thailand has first priority to purchase oil and natural gas produced from Block
B8/32. PTT is currently the sole purchaser of natural gas in Thailand and
purchases all gas at the well-head from private producers. PTT also maintains a
monopoly over natural gas transmission and distribution in the country. PTT is
an agency of the Kingdom of Thailand, which has "Baa1" and "BBB" sovereign debt
ratings from Moody's Investors Services, Inc. and Standard & Poor's Ratings
Service, respectively.
The GSA includes a minimum daily contract quantity or volume ("DCQ") which
PTT is required to take, or pay for if not taken, of 75 MMcfd of natural gas
during the first year of production (which commenced in February 1997), with the
DCQ rising to 85 MMcfd during the second year (which commences in October 1997).
Thereafter, the DCQ is determined by dividing the Field Reserves (as defined in
the GSA) by 6,000. However, if the DCQ exceeds 125 MMcfd, the quantity is
subject to further negotiation. If the Concessionaires fail to deliver the
minimum daily quantities under the GSA, PTT's sole recourse is to receive the
amount of the shortfall from a subsequent delivery at 75% of the contract price
at the time of the shortfall. In addition, if the Field Reserves should drop
below 31 Bcf the Concessionaires shall be obligated to pay PTT a proportionate
amount of the capital costs of the pipelines installed by PTT for the Tantawan
Field. The GSA terminates on the earlier of (i) termination of the petroleum
production period, or (ii) the date no Field Reserves remain. The
Concessionaires began
50
<PAGE> 54
delivering gas to PTT under the GSA on February 1, 1997. The Concessionaires
successfully completed the production test required under the GSA during March
1997.
The natural gas price is based on formulae which provide adjustments to the
base price, and also establish a ceiling and a floor price, for natural gas on
each April 1 and October 1. Adjustments will reflect changes in (i) wholesale
prices in Thailand, (ii) the U.S. producer price index for oil field machinery
and tools, (iii) medium fuel oil prices, and (iv) Thai Baht/U.S. Dollar
fluctuations. The Concessionaires receive payment in Thai Baht. The realized
price was estimated to be equivalent to approximately $2.19 per Mcf at April 1,
1997 and approximately $1.82 per Mcf at October 1, 1997.
In November 1997, the Gas Sales Agreement was amended to include production
from the Benchamas Field, to include B8/32 Partners Ltd. as a Concessionaire, to
set a minimum DCQ of 125 Mmcfd, and to set the level the DCQ must reach before
the quantity is subject to further negotiation from 125 MMcfd to 300 MMcfd.
Oil Sales. In early July, the Company had its first oil lifting from the
Tantawan Field and sold 278,000 barrels of oil pursuant to the MOU. In October
1997, the Company and the other Concessionaires received permission from the
Thai Department of Mineral Resources to export crude oil produced from the Block
and sold its second oil lifting for U.S. dollars to a third party purchaser for
export. The Company expects that the Concessionaires will continue to sell their
crude oil for U.S. dollars to a number of purchasers at market prices. As a
result, the Company expects that the MOU with PTT will be terminated.
THAI CONCESSION TERMS
Term. The Concession agreement provides for an exploration period of 6
years ending July 31, 1997, which may be renewed for an additional 3-year term
upon agreement between the parties. At the end of the initial exploration term
on July 31, 1997, Thai petroleum law permits the government to grant, upon
application by the Concessionaires, an additional three-year exploration term on
up to 50% of the Concession acreage that has not been previously designated as a
production area or relinquished, subject to certain terms and conditions
including the agreement to undertake a work program and the payment of fees and
rentals to be negotiated. In May 1997, the Concessionaires received an extension
of the exploration period for the Block, which will end on July 31, 2000.
Before the expiration of the exploration period, the Concessionaires may
pay surface reservation fees to retain acreage subject to forfeiture. The
Department of Mineral Resources sets the reservation fees on the date that the
Concessionaires submit the application for the surface reservation.
If production does not commence within four years of the designation of the
production area, the production period will expire. The petroleum production
period for producing areas is a 20-year period beginning on the last day of the
exploration period, which 20-year period may be extended for 10 years upon
agreement on the terms of the extension.
Production Bonuses. Pursuant to the terms of the Concession agreement, the
Concessionaires are required to make the following payments ("Production
Bonuses") to the Ministry of Finance: (i) $2.0 million upon the first production
of petroleum from the Block; (ii) $3.0 million when petroleum production from
the Block reaches an average of 50,000 barrels of crude oil equivalent per day
in any one calendar month; and (iii) $7.5 million when the petroleum production
from the Concession area reaches an average of 100,000 barrels of crude oil
equivalent per day in any calendar month. The Company paid to the Ministry of
Finance in January 1997 the sum of $927,000 representing the Company's 46.34%
share of the first Production Bonus.
51
<PAGE> 55
Royalties. The following table summarizes the monthly royalties required to
be paid to the Thai government based on barrels of oil equivalent produced
within Block B8/32 (natural gas is converted to an equivalent under the royalty
using a ratio of 10 MMbtu of natural gas to one barrel of oil):
<TABLE>
<CAPTION>
PERCENT OF VALUE
OF PRODUCT SOLD
MONTHLY VOLUME OF PRODUCT (IN EQUIVALENT BARRELS) OR DISPOSED
------------------------------------------------- ----------------
<S> <C>
Not exceeding 60,000........................................ 5.00%
Portion exceeding 60,000 but not exceeding 150,000.......... 6.25
Portion exceeding 150,000 but not exceeding 300,000......... 10.00
Portion exceeding 300,000 but not exceeding 600,000......... 12.50
Portion exceeding 600,000................................... 15.00
</TABLE>
Special Remuneratory Benefit. The Concessionaires must also pay an SRB,
which is calculated annually on a concession-wide basis as a percentage of
Annual Petroleum Profit (hydrocarbon revenues net of, among other things,
royalties, Production Bonuses, capital expenses and operating expenses). No
Benefit is payable if the block has no Annual Petroleum Profit. The Benefit
varies from zero to 75% of Annual Petroleum Profit, depending on the level of
annual revenue per meter drilled in the Block. The July 1, 1997 reserve
roll-forward prepared by Ryder Scott was prepared in light of Commission
guidelines and, as such, makes provision for the payment of SRB's. However, in
light of the anticipated drilling activity in the Block, the Company does not
anticipate paying any SRB's for the foreseeable future.
Termination and Revocation. The Concession agreement terminates (i) upon
the termination of the petroleum production period; (ii) when the Effective
Concession Area (as defined in the Concession) ceases to exist by virtue of the
provisions of the Petroleum Act B.E. 2514, which governs statutory percentage
relinquishment, or through the voluntary relinquishment made by the
Concessionaires; (iii) upon revocation of the Concession agreement; or (iv) upon
termination of the Concessionaires' status as a juristic person (i.e., subject
to the jurisdiction of Thai courts). Under the Thai Petroleum Act, the Ministry
of Industry may revoke the Concession agreement if the Concessionaires (i) fail
to pay the Production Bonuses, the royalties, the Benefits or income taxes; (ii)
become bankrupt; or (iii) fail to comply with good petroleum industry practice
or to conduct petroleum operations with due diligence or violate certain other
provisions of the Concession agreement (including giving special priority to
Thai nationals) or the Thai Petroleum Act (such as restrictions on transfer). In
addition, all production, storage and transportation equipment and facilities
must be turned over to the Thai government at the end of the production term.
Joint and Several Liability. Under the terms of the Concession agreement,
each of the Concessionaires is jointly and severally liable for the obligations
of the Concessionaires, including payment of income taxes, under the Concession.
TAX REGULATION
General
Anticipated profits derived from Thai Romo's operations will be subject to
taxation in both Thailand and the United States. No opinions of tax counsel have
been requested or received with respect to the Thailand and United States tax
consequences to Thai Romo, RMEC, TRH and the Company discussed below.
Certain Thailand Tax Consequences
Under the Petroleum Income Tax Act B.E. 2514 and (No. 4) B.E. 2532, Thai
Romo's net profits derived from the petroleum business are subject to Thai
income tax at the rate specified by the Royal Decree Prescribing Petroleum
Income Tax Rates B.E. 2514, which must not be lower than 50% and not be higher
than 60% of such net profits. Under the Royal Decree, the Thai income tax rate
to be imposed on Thai Romo's anticipated net profits derived from its petroleum
business is 50%.
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In computing Thai Romo's net profits from its petroleum business that will
be subject to Thai tax, any interest paid on loans by Thai Romo to any lenders
or shareholders, whether or not resident or doing business in Thailand, is not
deductible. Royalties to be paid by Thai Romo to the Ministry of Industry under
the Concession agreement are deductible in computing Thai Romo's net profits
from its petroleum business.
Dividends paid by Thai Romo and B8/32 Partners to TRH and RMEC (in the case
of Thai Romo) out of its net profits from the petroleum business should be
exempt from Thailand dividend withholding tax.
Certain United States Federal Income Tax Consequences to the Company, RMEC and
TRH
Classification of Thai Romo. For United States federal income tax purposes,
Thai Romo will be treated as a partnership. Each of TRH, RMEC and the other
shareholders of Thai Romo will be treated as partners in Thai Romo. Each such
partner will be required to take into account its allocable share of the items
of income, gain, loss, deduction and credit of Thai Romo, determined under
United States tax-accounting rules, in determining its United States federal
income tax liability, regardless of the amount of cash dividends, if any, paid
by Thai Romo with respect to its shares. Thai Romo's functional currency is
presently, and is anticipated to continue to be, the United States dollar.
Therefore, allocations of income, gain, loss, deduction and credit of Thai Romo
to its partners will be reported in United States dollars, and no significant
currency exchange gains or losses are expected to be recognized as a result of
such allocations. Foreign tax credits allocated to each of RMEC and TRH are
expected to partially offset the United States federal income tax liability of
RMEC and TRH attributable to the net income of Thai Romo. See " -- Creditability
of Thai Petroleum Income Tax" and " -- Alternative Minimum Taxable Income,"
discussed below.
Creditability of Thai Petroleum Income Tax. Various provisions of the
United States Internal Revenue Code, including sections 901(b), 901(e), 901(f),
904 and 907(a), and the regulations promulgated thereunder, reduce the amount of
foreign tax credit otherwise available to a domestic corporation that is deemed
to pay its pro rata share of foreign taxes paid by a partnership (i.e., Thai
Romo) to a foreign government on foreign mineral income. The regulations under
section 901(b) may cause a reduction in creditable foreign tax below the United
States corporate tax rate, with the result that the reduced foreign tax credit
may not fully offset the United States tax liability imposed on the United
States corporations' foreign source mineral income. The regulations under
section 901 treat any taxpayer who has, directly or indirectly through a
controlled person, a concession to extract foreign government-owned petroleum as
having received a specific economic benefit from the foreign government. Persons
who have received a specific economic benefit are defined by the regulations as
"dual capacity taxpayers."
The section 901 regulations generally treat a portion of any foreign levy
paid by a dual capacity taxpayer as payment in the nature of a royalty for the
economic benefit, rather than as a creditable foreign tax. The dual capacity
taxpayer is required to affirmatively demonstrate to the Internal Revenue
Service the portion of the foreign levy that qualifies as a creditable tax by
using one of various methods. Under the "safe harbor" method, the taxpayer is
permitted to make an irrevocable election for all taxable years to determine the
portion of the foreign levy that qualifies as a creditable tax by reference to
the general tax rate that applies in the foreign country to persons who are not
dual capacity taxpayers. The Company, on behalf of TRH and RMEC, presently
intends to elect to use the safe harbor method to determine the amount of Thai
Petroleum Income Tax paid by Thai Romo that will qualify as a creditable tax,
but such intention may change if another method appears more favorable at the
time the election is required to be made.
The safe harbor method is intended to yield a qualifying tax credit amount
that is roughly equal to the amount of generally imposed income tax (i.e., the
general corporate income tax) in Thailand that would have been required to be
paid by Thai Romo if it had not been a dual capacity taxpayer and if the general
corporate income tax had allowed a deduction for the specific economic benefit
amount. The calculations required to determine the precise amount of Thai tax
that would be creditable under the
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safe harbor method may, in certain cases, substitute gross income and deductions
that would have been included and deducted, respectively, under the Thai general
corporate income tax for amounts that in fact will be included and deducted
under the Thai petroleum Income Tax Act based on the future operations of Thai
Romo. Therefore, it is impossible to accurately determine in advance what
portion, if any, of the Thai Petroleum Income Tax would be deemed to be
non-creditable under the safe harbor method. It is possible, however, that under
the safe harbor method, the amount of Thai Petroleum Income Tax treated as a
creditable tax will be less than 35%, with the result that TRH and RMEC may owe
residual United States income taxes on their pro rata shares of Thai Romo's net
taxable income allocated to them, even though Thai Romo would have paid Thai
Petroleum Income Tax at the rate of 50%.
Alternative Minimum Taxable Income. In addition to the provisions discussed
above, which generally limit the amount of foreign taxes that can be credited
against the United States tax liability of RMEC and TRH, special rules apply for
purposes of computing the alternative minimum tax. In general, the alternative
minimum tax foreign tax credit can only offset up to 90% of a corporation's
alternative minimum taxable income. Therefore, even if RMEC and TRH pay little
or no regular corporate tax, they may be subject to alternative minimum tax at
the rate of 20% on the 10% of their alternative minimum taxable income that is
not eligible for offset by the alternative minimum tax foreign tax credit.
OPERATING AGREEMENTS
Tantawan. As a result of MOTL's decision not to participate in the
development of the Tantawan Field, the Tantawan Concessionaires entered into the
Tantawan JOA as of March 3, 1995, which governs operations in the Tantawan
Field. Thaipo was designated as operator of the field under the supervision of
the Operating Committee. The Operating Committee consists of one representative
of each Tantawan Concessionaire with the operator as the Chairman. Each party
has a percentage vote on the Operating Committee equal to its percentage
interest. For information on the percentage interest of each party, see
"Business and Properties -- General". All decisions of the Operating Committee
require the affirmative vote of two or more non-affiliated parties having an
aggregate percentage interest of at least 51%. The operator has the exclusive
right to conduct and must conduct all operations on behalf of the
Concessionaires that relate to the Tantawan Field, including but not limited to
preparing and implementing proposed work programs, budgets and authorizations
for expenditure, planning for services and materials procurement, maintaining
insurance, and reporting to each of the Concessionaires data and information
concerning the operation in the Tantawan Field. See "Risk Factors -- Dependence
on Third-Party Operator." However, the Operating Committee must approve the
general outline of all work programs, appraisal and development operations,
certain expenditures, and operating budgets for the Tantawan Field.
The Tantawan JOA limits the sale or transfer of interests in the Tantawan
Field, including the sale or transfer of 50% or more of a party's voting stock
to a nonaffiliate. Subject to certain exceptions, a Concessionaire may not
reduce its interest below 10%, grant to an unaffiliated party an interest of
less than 10% or divide its percentage interest among two or more third parties.
However, a Concessionaire may withdraw from the Tantawan JOA if its interests
are unencumbered. Upon any such withdrawal or other proposed transfer, the
remaining Concessionaires have a preferential right to acquire the disposing
Concessionaire's interest in proportion to their percentage interests. A
withdrawing Concessionaire would remain liable to the other Concessionaires for
its share of all outstanding expenditures and liabilities related to work
programs approved by the Operating Committee.
Upon commencement of non-consent operations, each non-participating party's
percentage interest and leasehold operating rights in the non-consent operations
and title to the hydrocarbons produced therefrom is to be owned by and vested in
each participating party in proportion to its participating interest prior to
reversion, after recoupment of costs by the participating parties out of the
non-participating party's share of the proceeds under the Concession. The
participating parties may recoup up to 1200% or 800%, in the case of appraisal
operations and development operations, respectively, of the share of the costs
of the non-participating party had the non-participating party participated.
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The Concessionaires have several liability in conducting the field's joint
operations. Each Concessionaire agrees to indemnify, to the extent of its
percentage interest, each of the other Concessionaires for any claim or
liability to third parties arising from or in connection with the Tantawan JOA.
Remainder of Block B8/32. Thai Romo, Thaipo, MOTL and Palang are parties to
the JOA dated August 1, 1991, for which MOTL acted as operator for the Block.
Terms and conditions under the JOA are substantially similar to those in the
Tantawan JOA, except that all decisions of the Operating Committee require the
affirmative vote of two or more non-affiliated parties having an aggregate
percentage interest of at least 51%. In March 1997, the Concessionaires
purchased MOTL and Thaipo replaced MOTL as the operator.
EMPLOYEES
At June 30, 1997, the Company employed approximately 14 people (excluding
Messrs. Rutherford and Moran who do not receive a salary or benefits from the
Company) in its Houston, Texas location whose functions are associated with
management, engineering, geology, finance and administration. The Company has no
collective bargaining arrangement with employees and believes its relations with
its employees are good.
OFFICES
The Company leases its Houston office under a lease covering approximately
9,473 square feet, expiring in February 2002. The monthly rent and expenses are
approximately $10,000.
MANAGEMENT
The following table sets forth information regarding the current directors
and officers of the Company:
<TABLE>
<CAPTION>
NAME AGE(1) POSITION
---- ------ --------
<S> <C> <C>
John A. Moran........... 65 Chairman of the Board
Patrick R. Rutherford... 62 President, Chief Executive Officer and Director
Michael D. McCoy........ 45 Executive Vice President, Chief Operating Officer
and Director
Howard Gittis........... 62 Director
Jere W. McKenny......... 68 Director
Harry C. Lee............ 64 Director
Chote Sophonpanich...... 54 Director
David F. Chavenson...... 45 Vice President, Finance and Chief Financial
Officer and Corporate Secretary
Gregory Nelson.......... 50 Vice President, Exploration
Thomas E. Rankin........ 62 Vice President, Operations
</TABLE>
- ---------------
(1) As of June 30, 1997.
JOHN A. MORAN has been Chairman of the Board of the Company since its
inception. Since 1993, he has been President of RMEC, which became a
wholly-owned subsidiary of the Company in June 1996. From April 1967 until his
retirement in 1992, Mr. Moran was a Director and Officer of the
Dyson-Kissner-Moran Corporation ("DKM"), a private holding company engaged
primarily in the manufacture and distribution of industrial and consumer
products and a developer of commercial and industrial real estate on the east
coast of the United States. During that time, Mr. Moran was successively, Vice
President, Executive Vice President, President, Chairman of the Board and
Chairman of the Executive Committee of DKM. Prior to joining what was then the
Dyson-Kissner Corporation, Mr. Moran was a Vice President of Blyth & Co., Inc.
(an investment banking firm) in its New York and Los Angeles offices. Mr. Moran
is a Director of Bessemer Securities Corporation, New York City and The Coleman
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Company of Golden, Colorado. He holds a B.S. in Banking and Finance and an
honorary L.L.B. from the University of Utah. He is a member and former Chairman
of the National Advisory Council of the University of Utah, and a former
Director of the United Nations Association and trustee of the Brooklyn Museum.
He is a member of the Chief Executives Organization and The Foreign Policy
Association.
PATRICK R. RUTHERFORD has been President and Chief Executive Officer of the
Company since its inception. He has been Chairman of the Board of RMEC since its
inception. Since 1973, he has been Chairman of the Board and part owner of
Rutherford Oil Corporation (an oil and gas exploration and production company
that serves as operator of wells located in Texas, Louisiana and the Gulf of
Mexico). He also served on the Board of Regents of West Texas State University
and was President of the Houston Speech and Hearing Center. He also has served
as a director of First Interstate Bank of Texas, Texas Commerce Bancshares, OKC
Corporation, Olix Company, The University of Texas Health Science Center
Development Board, the Geological Foundation of the University of Houston, and
one of the founding directors of Southwest Airlines.
MICHAEL D. MCCOY has been Executive Vice President and Chief Operating
Officer of the Company since its inception. He has been Executive Vice President
of RMEC since September 1990. Prior to joining the Company, Mr. McCoy served as
Manager of Land and Legal for Rutherford Oil Corporation. Mr. McCoy received his
B.A. degree from The University of Texas in 1974 and J.D. degree from South
Texas College of Law in 1977.
HOWARD GITTIS was elected to serve as a director of the Company immediately
prior to commencement of the Company's initial public offering on June 20, 1996.
Mr. Gittis is the Vice Chairman & Chief Administrative Officer of MacAndrews &
Forbes Holdings Inc., a diversified holding company with interests in consumer
products, financial services, entertainment, and publishing. His other
directorships include Andrews Group Incorporated, Consolidated Cigar Holdings
Inc., First Nationwide Holdings, Inc., First Nationwide (Parent) Holdings, Inc.,
California Federal Bank, a Federal Savings Bank, Mafro Consolidated Group, Inc.,
Pneumo Abex Corporation, Power Control Technologies Inc., Revlon, Inc., Revlon
Worldwide Corporation, Loral Space & Communications Ltd. and Jones Apparel
Group. Prior to joining MacAndrews & Forbes in 1985, Mr. Gittis was a partner at
the Philadelphia law firm of Wolf, Block, Schorr and Solis-Cohen ("Wolf Block")
where he had served as Chairman of the Executive Committee. His tenure at Wolf
Block lasted over 25 years and concentrated on general litigation, real estate,
and corporate acquisition and divestiture work. Mr. Gittis is a member of the
Board of Overseers of the University of Pennsylvania Law School, a Trustee of
Temple University and a member of the Board of Visitors of Temple University
School of Law. Mr. Gittis holds two degrees from the University of Pennsylvania,
a B.S. in Economics and an L.L.B. from the Law School.
JERE W. MCKENNY was elected to serve as a director of the Company
immediately prior to commencement of the Company's initial public offering on
June 20, 1996. Prior to his retirement in 1993, Mr. McKenny was President and
Chief Operating Officer of Kerr-McGee Corporation ("Kerr-McGee") for nine years.
He also served as President, Vice Chairman of the Board, Vice President --
Exploration and Vice President -- Oil and Gas Exploration during his forty years
of employment with Kerr-McGee. Mr. McKenny currently serves on the School of
Geology and Geophysics Advisory Board, College of Business Administration Board
of Advisors and College of Engineering Board of Visitors Advisory Board of the
University of Oklahoma and on the Executive Committee and Board of Directors of
the Allied Arts Foundation. Mr. McKenny holds a B.S. and an M.S. in Geological
Engineering from the University of Oklahoma.
HARRY C. LEE was elected to serve as a director of the Company immediately
prior to commencement of the Company's initial public offering on June 20, 1996.
Mr. Lee is an energy resources consultant in the area of oil and gas exploration
and production. Prior to his retirement in 1993, Mr. Lee was with Unocal
Corporation ("Unocal") for 34 years. During his tenure at Unocal, Mr. Lee served
in various executive and managerial functions at both parent and subsidiary
levels, including Energy Resources Vice President -- Operations for major
international and domestic business units from 1992 to 1993, President of Unocal
International Oil & Gas Division from 1988 to 1992, and Vice President and
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General Manager of Union Oil Company of Indonesia from 1978 to 1982. Mr. Lee
holds a B.S. in Geology and an M.S. in Geology from the University of Oklahoma.
CHOTE SOPHONPANICH was elected to serve as a director of the Company
immediately prior to commencement of the Company's initial public offering on
June 20, 1996. Mr. Sophonpanich is Executive Chairman of Green Spot (Thailand)
Co. Ltd. and Chairman of Krungdhep Sophon Public Company Ltd., Eternal
Petrochemicals Co. Ltd. and C.S. Capital Ltd., all of which are organized under
the laws of the Kingdom of Thailand. He is serving as a non-executive director
of the Bangkok Bank with which he has been affiliated since 1966. Mr.
Sophonpanich is also a director of Chote Chalit Co. Ltd., Shangri-la Hotel
Public Company Ltd., Siam Food Products Public Company Ltd., Palang (one of the
Concessionaires), Thoresen Agency Public Company Ltd., Union Plastic Public
Company Ltd., Union Textile Industries Public Company Ltd. and Wilson Insurance
Ltd. in Thailand. He also is serving as a non-executive director of companies
outside of Thailand, such as Bangkok Investments Ltd. of Cayman Islands, First
Overseas Bangkok Investments Pte. Ltd. of Singapore and Stelux Co. Ltd. of Hong
Kong. Mr. Sophonpanich graduated from the University of Sydney with a Bachelor's
degree in Economics.
DAVID F. CHAVENSON has been Vice President, Finance and Chief Financial
Officer of the Company since April 1996. Mr. Chavenson was Treasurer of Oryx
Energy Company, an oil and gas exploration and production company (previously
Sun Exploration and Production Co.) ("Oryx"), from 1993 to April 1996. Prior to
that, during his 18 years with Oryx, he served as Assistant Treasurer and
Manager of Corporate Finance, Manager of Financial Analysis and Senior Financial
Specialist. Mr. Chavenson holds a B.A. in Economics from Dickinson College and
received an M.B.A. from the Harvard Business School. He is also a C.P.A.
GREGORY NELSON has been Vice President, Exploration of the Company since
its inception. From 1984 to 1992, Mr. Nelson was employed by Rutherford Oil
Corporation as an explorationist. From 1977 to 1984, Mr. Nelson was with Mobil
Oil Corporation. His duties at Mobil included exploration, with both geological
and geophysical responsibility, in the Gulf of Mexico and North Africa. His last
position at Mobil was Manager of Production Geology, North Texas and San Juan
Basin, New Mexico. He has a B.A. in Geology from Winona State College and
pursued post graduate studies in geology at Miami University from 1974 to 1977.
THOMAS E. RANKIN has been Vice President, Operations of the Company since
May, 1997. Mr. Rankin has forty years of diversified executive responsibilities
in logistics, drilling and production operations worldwide with major
multinational energy companies. He was president of his own international
engineering consulting firm from 1995 to 1997. Mr. Rankin was Worldwide Drilling
Manager (Exploration) for Amoco Production Company upon his retirement in 1995
after holding numerous international engineering and managerial positions during
his 28 years with Amoco. He spent nine years with Marathon Oil Company in
various domestic engineering assignments prior to joining Amoco. Mr. Rankin has
a B.S. in Petroleum Engineering from The University of Texas.
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DESCRIPTION OF REVOLVING CREDIT FACILITY
The following summary does not purport to be complete and is subject to and
qualified in its entirety by reference to the credit agreement, a copy of which
is on file with the Commission. See "Available Information."
The Company has entered into a $150 million Revolving Credit Facility with
a group of commercial lenders (the "Lenders"), with The Chase Manhattan Bank
("Chase") as administrative agent. The Revolving Credit Facility has a maturity
date of September 30, 1999. Loans under the Revolving Credit Facility are
secured by the stock of the Company's subsidiaries and of B8/32 Partners. The
Company is currently in the process of arranging an Amended Revolving Credit
Facility. For a description of the Amended Facility, see "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
Interest and Fees
Under the terms of the Revolving Credit Facility, outstanding borrowings
bear interest at the option of the Company at either (i) the Base Rate (defined
as the greater of the Federal Funds Rate plus 0.5%, or the prime rate as
announced by Chase) plus the Applicable Margin or (ii) the Eurodollar Rate
(defined as an average of LIBOR of Chase and NationsBank of Texas, N.A.) plus
the Applicable Margin. The Applicable Margin was increased from 0.25% for Base
Rate Loans and 1.75% on Eurodollar Loans to 1.25%, and 2.75%, respectively as of
November 10, 1997. A commitment fee equal to 0.5% per annum on the average daily
balance of the unused borrowing base is payable quarterly.
Borrowing Base
The Revolving Credit Facility provides for semi-annual borrowing base
redeterminations by the Lenders, which may increase or reduce the amount of
credit available at any time. The borrowing base limitation as of July 1, 1997
was $120 million. The borrowing base limitation was reset at $60,000,000 upon
the completion of the Offering.
Covenants
The Revolving Credit Facility contains customary affirmative and negative
covenants with respect to, among other things, providing financial statements,
notice of any litigation, insurance, liens, indebtedness, investments,
restricted payments, affiliate transactions, repurchase or redemption of the
Notes and certain contracts. The Revolving Credit Facility also requires the
Company to maintain an interest coverage ratio for quarterly periods ending on
or after September 30, 1997 as follows: 1.5:1 for the quarter ending September
30, 1997, 2.75:1 for the quarter ending December 31, 1997 and 3:1 thereafter,
such rate to be calculated excluding interest payable from the interest escrow
for the Notes. As of September 30, 1997, the Company was not in compliance with
the covenant requiring the Company to maintain an EBIDTA to interest coverage
ratio of 1.5:1 for the quarter ending September 30, 1997. Such non-compliance,
however, was waived by the Lenders.
Events of Default
The Revolving Credit Facility contains customary events of default,
including, among other things, and subject to applicable grace periods, payment
defaults, material misrepresentations, covenant defaults, certain bankruptcy
events, judgment defaults, reductions of ownership interest in any Company
subsidiaries and certain adverse actions by the Thai government.
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<PAGE> 62
DESCRIPTION OF THE NOTES
GENERAL
The New Notes, like the Old Notes, are to be issued under the Indenture, a
copy of which is available upon request to the Company. The following summary of
certain provisions of the Indenture does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, all the provisions
of the Indenture, including the definitions of certain terms therein and those
terms made a part thereof by the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act").
The Notes will be issued only in fully registered form, without coupons, in
denominations of $1,000 and any integral multiple of $1,000. No service charge
shall be made for any registration of transfer or exchange of Notes, but the
Company may require payment of a sum sufficient to cover any transfer tax or
other similar governmental charge payable in connection therewith.
Terms of the Notes
The Notes will be unsecured senior subordinated obligations of the Company,
limited to $120 million aggregate principal amount, and will mature on October
1, 2004.
The Notes will bear interest at the rate of 10 3/4% per annum from
September 29, 1997 or from the most recent date to which interest has been paid
or provided for, payable semiannually to Holders of record at the close of
business on the March 15 or September 15 immediately preceding the interest
payment date on April 1 and October 1 of each year, commencing April 1, 1998.
Interest is paid on a 360-day year, 12 thirty-day month basis.
The interest rate on the Notes is subject to increase in certain
circumstances if the Company and the Subsidiary Guarantors do not file a
registration statement relating to the Exchange Offer or if the registration
statement is not declared effective on a timely basis or if certain other
conditions are not satisfied, all as described under " -- Exchange Offer;
Registration Rights."
Optional Redemption
Except as set forth in the following paragraphs, the Notes will not be
redeemable at the option of the Company prior to October 1, 2001. Thereafter,
the Notes will be redeemable, at the Company's option, in whole or in part, at
any time or from time to time, upon not less than 30 nor more than 60 days,
prior notice mailed by first-class mail to each Holder's registered address, at
the following redemption prices (expressed in percentages of principal amount),
plus accrued and unpaid interest to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date), if redeemed during the 12-month period
commencing on October 1 of the years set forth below:
<TABLE>
<CAPTION>
REDEMPTION
PERIOD PRICE
------ ----------
<S> <C>
2001........................................................ 105.375%
2002........................................................ 102.6875%
2003 and thereafter......................................... 100%
</TABLE>
In addition, at any time and from time to time prior to October 1, 2000,
the Company may redeem in the aggregate up to 35% of the original principal
amount of the Notes with the proceeds of one or more Equity Offerings, at a
redemption price (expressed as a percentage of principal amount) of 110 3/4%
plus accrued interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); provided, however, that at least 65% of the original
aggregate principal amount of the Notes must remain outstanding after each such
redemption.
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<PAGE> 63
In the case of any partial redemption, selection of the Notes for
redemption will be made by the Trustee on a pro rata basis, by lot or by such
other method as the Trustee in its sole discretion shall deem to be fair and
appropriate, although no Note of $1,000 in original principal amount or less
shall be redeemed in part. If any Note is to be redeemed in part only, the
notice of redemption relating to such Note shall state the portion of the
principal amount thereof to be redeemed. A new Note in principal amount equal to
the unredeemed portion thereof will be issued in the name of the Holder thereof
upon cancellation of the original Note.
At any time prior to October 1, 2001, the Notes may also be redeemed as a
whole at the option of the Company upon the occurrence of a Change of Control,
upon not less than 30 nor more than 60 days prior notice (but in no event more
than 90 days after the occurrence of such Change of Control), at a redemption
price equal to 100% of the principal amount thereof plus the Applicable Premium,
and accrued and unpaid interest, if any, to the date of redemption (the
"Redemption Date") (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date).
Security
The Indenture provides that on the Issue Date, the Company must purchase
and pledge to the Trustee as security for the benefit of the Holders the Pledged
Securities in such amount as will be sufficient upon receipt of scheduled
interest and principal payments of such securities to provide for payment in
full of the first four scheduled interest payments due on the Notes. The Company
used approximately $24.3 million of the net proceeds of the Offering to acquire
the Pledged Securities.
The Pledged Securities will be pledged by the Company to the Trustee for
the benefit of the Holders pursuant to the Indenture and will be held by the
Trustee in the Pledge Account. Pursuant to the Indenture, immediately prior to
an Interest Payment Date, the Company may either deposit with the Trustee from
funds otherwise available to the Company cash sufficient to pay the interest
scheduled to be paid on such date or the Company may direct the Trustee to
release from the Pledge Account proceeds sufficient to pay interest then due on
the Notes. In the event the Company exercises the former option, the Company may
direct the Trustee to release a like amount of proceeds from the Pledge Account.
A failure to pay interest on the Notes in a timely manner through the first four
scheduled interest payment dates will constitute an immediate Event of Default
under the Indenture, with no grace or cure period. The Pledged Securities and
Pledge Account will also secure the repayment of the principal amount and
premium, if any, on the Notes.
Under the Indenture, once the Company makes the first four scheduled
interest payments on the Notes, all of the remaining Pledged Securities, if any,
will be released from the Pledge Account and thereafter the Notes will be
unsecured.
Exchange Offer; Registration Rights
The Company and the Subsidiary Guarantors have agreed pursuant to the
Registration Rights Agreement that the Company and the Subsidiary Guarantors
would, at their cost, (i) within 60 days after the date of original issuance of
the Notes, file the Exchange Offer Registration Statement with the Commission
with respect to the New Notes having terms substantially identical in all
material respects to the Old Notes (except that the New Notes will not contain
terms with respect to transfer restrictions) and (ii) use their reasonable best
efforts to cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act within 180 days after the date of original
issuance of the Old Notes. The Registration Statement of which this Prospectus
is a part constitutes the Exchange Offer Registration Statement. Upon the
effectiveness of the Exchange Offer Registration Statement, the Company and the
Subsidiary Guarantors agreed that they would offer the New Notes in exchange for
surrender of the Old Notes. The Company agreed to keep the Exchange Offer open
for not less than 30 days (or longer if required by applicable law) after the
date of this Prospectus. For each Old Note surrendered to the Company pursuant
to the Exchange Offer, the holder of such Note will receive a New
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Note having a principal amount equal to that of the surrendered Old Note.
Interest on each New Note will accrue from the last interest payment date to
which interest was paid on the Note surrendered in exchange therefor or, if no
interest has been paid on such Note, from September 29, 1997. Under existing
Commission interpretations, the New Notes would be freely transferable by
holders other than affiliates of the Company after the Exchange Offer without
further registration under the Securities Act if the holder of the New Notes
represents that it is acquiring the New Notes in the ordinary course of its
business, that it has no arrangement or understanding with any person to
participate in the distribution of the New Notes and that it is not an affiliate
of the Company, as such terms are interpreted by the Commission; provided,
however, that broker-dealers ("Participating Broker-Dealers") receiving New
Notes in the Exchange Offer will have a prospectus delivery requirement with
respect to resales of such New Notes. The Commission has taken the position that
Participating Broker-Dealers may fulfill their prospectus delivery requirements
with respect to New Notes (other than a resale of an unsold allotment from the
original sale of the Notes) with this Prospectus. Under the Registration Rights
Agreement, the Company is required to allow Participating Broker-Dealers and
other persons, if any, with similar prospectus delivery requirements to use the
prospectus contained in the Exchange Offer Registration Statement in connection
with the resale of such New Notes.
A Holder of Notes (other than certain specified holders) who wishes to
exchange such Notes for New Notes in the Exchange Offer will be required to
represent that any New Notes to be received by it will be acquired in the
ordinary course of its business and that at the time of the commencement of the
Exchange Offer it has no arrangement or understanding with any person to
participate in the distribution (within the meaning of the Securities Act) of
the New Notes and that it is not an "affiliate" of the Company, as defined in
Rule 405 of the Securities Act, or if it is an affiliate, that it will comply
with the registration and prospectus delivery requirements of the Securities Act
to the extent applicable.
In the event that applicable interpretations of the staff of the Commission
do not permit the Company and the Subsidiary Guarantors to effect such an
Exchange Offer, or if for any other reason the Exchange Offer is not consummated
within 180 days of the original issuance of the Notes, or if the Initial
Purchasers so request with respect to Notes not eligible to be exchanged for New
Notes in the Exchange Offer, or if any holder of Old Notes is not eligible to
participate in the Exchange Offer or does not receive freely tradable New Notes
in the Exchange Offer, the Company and the Subsidiary Guarantors will, at their
cost, (a) as promptly as practicable, file a shelf registration statement (the
"Shelf Registration Statement") covering resales of the Notes, (b) use their
reasonable best efforts to cause the Shelf Registration Statement to be declared
effective under the Securities Act and (c) keep the Shelf Registration Statement
effective until the earlier of (i) the time when the Notes covered by the Shelf
Registration Statement can be sold pursuant to Rule 144 without any limitations
under clauses (c), (e), (f) and (h) of Rule 144 and (ii) two years from the
Issue Date. The Company will, in the event a Shelf Registration Statement is
filed, among other things, provide to each holder for whom such Shelf
Registration Statement was filed copies of the prospectus which is a part of the
Shelf Registration Statement, notify each such holder when the Shelf
Registration Statement has become effective and take certain other actions as
are required to permit unrestricted resales of the Notes or the New Notes, as
the case may be. A holder selling such Notes or New Notes pursuant to the Shelf
Registration Statement generally would be required to be named as a selling
security holder in the related prospectus and to deliver a prospectus to
purchasers, will be subject to certain of the civil liability provisions under
the Securities Act in connection with such sales and will be bound by the
provisions of the Registration Rights Agreement which are applicable to such
holder (including certain indemnification obligations). In addition, each holder
of the Notes or New Notes to be registered under the Shelf Registration
Statement will be required to deliver certain information to be used in
connection with the Shelf Registration statement and to provide comments on the
Shelf Registration Statement within the time period set forth in the
Registration Rights Agreement in order to have such holder's Old Notes or New
Notes, as the case may be, included in the Shelf Registration Statement.
If (i) on or prior to 60 days after the Issue Date, neither the Exchange
Offer Registration Statement nor the Shelf Registration Statement has been filed
with the Commission; (ii) on or prior to 180 days
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after the original issuance of the Notes, neither the Exchange Offer is
consummated nor the Shelf Registration Statement is declared effective; or (iii)
after either the Exchange Offer Registration Statement or the Shelf Registration
Statement is declared effective, such Registration Statement thereafter ceases
to be effective or usable (subject to certain exceptions) in connection with
resales of Old Notes or New Notes in accordance with and during the periods
specified in the Registration Rights Agreement (each such event referred to in
clauses (i) through (iii), a "Registration Default"), additional interest will
accrue on the Notes and the New Notes, in each case at the rate of 0.50% per
annum from and including the date on which any such Registration Default shall
occur until the earlier of (i) the date on which such Registration Default has
been cured or (ii) the date on which all the Notes otherwise become freely
transferable by holders other than affiliates of the Company without further
registration under the Securities Act, calculated on the principal amount of the
Notes or New Notes. Such interest is payable in addition to any other interest
payable from time to time with respect to the Old Notes and the New Notes.
If the Company effects the Exchange Offer, it will be entitled to close the
Exchange Offer 30 days after the commencement thereof provided that it has
accepted all Notes theretofore validly tendered in accordance with the terms of
the Exchange Offer.
The summary herein of certain provisions of the Registration Rights
Agreement does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all the provisions of the Registration Rights
Agreement, a copy of which is available upon request to the Company.
Guaranties
The obligations of the Company pursuant to the Notes, including the
repurchase obligation resulting from a Change of Control, will be
unconditionally guaranteed, jointly and severally, on an unsecured, senior
subordinated basis by each of the Subsidiary Guarantors. The Company is a
holding company that will derive substantially all its operating income and cash
flow from its subsidiaries, the common stock of certain of which is pledged to
secure all indebtedness of the Company outstanding under the Revolving Credit
Facility. The obligations of each Subsidiary Guarantor are limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor (including, without limitation, any
guarantees under the Revolving Credit Facility) and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guaranty or pursuant to its contribution obligations under the
Indenture, result in the obligations of such Subsidiary Guarantor under the
Subsidiary Guaranty not constituting a fraudulent conveyance or fraudulent
transfer under federal or state law.
Each Subsidiary Guarantor may consolidate with or merge into or sell its
assets to the Company or another Subsidiary Guarantor without limitation. Each
Subsidiary Guarantor may consolidate with or merge into or sell all or
substantially all its assets to a Person other than the Company or another
Subsidiary Guarantor (whether or not affiliated with the Guarantor). Upon the
sale or disposition (by merger or otherwise) of a Subsidiary Guarantor (or all
or substantially all of its assets) to a Person (whether or not an Affiliate of
the Subsidiary Guarantor) which is not a Subsidiary of the Company, which sale
or disposition is otherwise in compliance with the Indenture (including the
covenant described under "-- Certain Covenants -- Limitation on Sales of Assets
and Subsidiary Stock"), such Subsidiary Guarantor shall be deemed released from
all its obligations under the Indenture and its Subsidiary Guaranty and such
Subsidiary Guaranty shall terminate; provided, however, that any such
termination shall occur only to the extent that all obligations of such
Subsidiary Guarantor under the Revolving Credit Facility and all of its
Guaranties of, and under all of its pledges of assets or other security
interests which secure, any other Indebtedness of the Company shall also
terminate upon such release, sale or transfer.
The obligations of each Subsidiary Guarantor will be limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities (including, but not limited to, Guarantor Senior
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Indebtedness) of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guaranty or pursuant to its contribution obligations under the
Indenture, result in the obligations of such Subsidiary Guarantor under the
Subsidiary Guaranty not constituting a fraudulent conveyance or fraudulent
transfer under federal, state or Thai law. Each Subsidiary Guarantor that makes
a payment or distribution under a Subsidiary Guaranty shall be entitled to a
contribution from each other Subsidiary Guarantor in a pro rata amount based on
the Adjusted Net Assets (as defined in the Indenture) of each Subsidiary
Guarantor.
The provisions under the Indenture relating to the Guaranties may be waived
or modified with the written consent of the holders of a majority in principal
amount of the Notes then outstanding.
Ranking and Subordination
The indebtedness evidenced by the Notes will be senior subordinated,
unsecured obligations of the Company. The payment of the principal of, premium
(if any), and interest on the Notes and the payment of any Subsidiary Guaranty
is subordinated in right of payment, as set forth in the Indenture, to the
payment when due of all Senior Indebtedness of the Company or all Subsidiary
Guarantor Senior Indebtedness of the relevant Subsidiary Guarantor, as the case
may be, whether outstanding on the Issue Date or thereafter incurred, including
the obligations of the Company and the Subsidiary Guarantors under the Revolving
Credit Facility. As of September 30, 1997, the amount of Senior Indebtedness of
the Company was approximately $30 million, represented by amounts outstanding
under the Revolving Credit Facility. Although the Indenture contains limitations
on the amount of additional Indebtedness that the Company may Incur, under
certain circumstances the amount of such Indebtedness could be substantial and,
in any case, such Indebtedness may be Senior Indebtedness. See "-- Certain
Covenants -- Limitation on Indebtedness" below.
All the operations of the Company are conducted through its subsidiaries.
Claims of creditors of such subsidiaries, including trade creditors, secured
creditors and creditors holding indebtedness and guarantees issued by such
subsidiaries, and claims of preferred stockholders (if any) of such subsidiaries
generally will have priority with respect to the assets and earnings of such
subsidiaries over the claims of creditors of the Company, including holders of
the Notes, even though such obligations will not constitute Senior Indebtedness.
The Notes and each Subsidiary Guaranty, therefore, will be effectively
subordinated to creditors (including trade creditors) and preferred stockholders
(if any) of the subsidiaries of the Company (other than the Subsidiary
Guarantors). At September 30, 1997, the total liabilities of the Company's
subsidiaries (excluding intercompany debt and amounts outstanding under the
Revolving Credit Facility and the Notes) were approximately $8 million,
including trade payables. Although the Indenture limits the incurrence of
Indebtedness and preferred stock of certain of the Company's subsidiaries, such
limitation is subject to a number of significant qualifications. Moreover, the
Indenture does not impose any limitation on the incurrence by such subsidiaries
of liabilities that are not considered Indebtedness or Preferred Stock under the
Indenture. See "-- Certain Covenants -- Limitation on Indebtedness and Preferred
Stock of Subsidiaries."
Only Indebtedness of the Company or a Subsidiary Guarantor that is Senior
Indebtedness or Subsidiary Guarantor Senior Indebtedness, as the case may be,
will rank senior to the Notes and the relevant Subsidiary Guaranty in accordance
with the provisions of the Indenture. The Notes and each Subsidiary Guaranty
will in all respects rank pari passu with all other Senior Subordinated
Indebtedness of the Company and Subsidiary Guarantor Senior Subordinated
Indebtedness of the relevant Subsidiary Guarantor, as the case may be. The
Company has agreed in the Indenture that it will not Incur, directly or
indirectly, any Indebtedness that is subordinate or junior in ranking in any
respect to Senior Indebtedness unless such Indebtedness is Senior Subordinated
Indebtedness or is contractually subordinated in right of payment to Senior
Subordinated Indebtedness. In addition, no Subsidiary Guarantor shall Incur any
Indebtedness if such Indebtedness is subordinate or junior in ranking in any
respect to any Subsidiary Guarantor Senior Indebtedness of such Subsidiary
Guarantor unless such Indebtedness is Subsidiary Guarantor Senior Subordinated
Indebtedness of such Subsidiary Guarantor
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or is contractually subordinated in right of payment to Subsidiary Guarantor
Senior Subordinated Indebtedness of such Subsidiary Guarantor. Unsecured
Indebtedness is not deemed to be subordinate or junior to Secured Indebtedness
merely because it is unsecured.
The Company may not pay principal of, premium (if any) or interest on, the
Notes or make any deposit pursuant to the provisions described under
"Defeasance" below and may not repurchase, redeem or otherwise retire any Notes
(collectively, "pay the Notes") if (i) any Designated Senior Indebtedness is not
paid when due or (ii) any other default on Designated Senior Indebtedness occurs
and the maturity of such Designated Senior Indebtedness is accelerated in
accordance with its terms unless, in either case, the default has been cured or
waived and any such acceleration has been rescinded or such Designated Senior
Indebtedness has been paid in full. However, the Company may pay the Notes
without regard to the foregoing if the Company and the Trustee receive written
notice approving such payment from the Representative of the Designated Senior
Indebtedness with respect to which either of the events set forth in clause (i)
or (ii) of the immediately preceding sentence has occurred and is continuing.
During the continuance of any default (other than a default described in clause
(i) or (ii) of the second preceding sentence) with respect to any Designated
Senior Indebtedness pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or the expiration of any applicable grace periods, the
Company may not pay the Notes for a period (a "Payment Blockage Period")
commencing upon the receipt by the Trustee (with a copy to the Company) of
written notice (a "Blockage Notice") of such default from the Representative of
the holders of such Designated Senior Indebtedness specifying an election to
effect a Payment Blockage Period and ending 179 days thereafter (or earlier if
such Payment Blockage Period is terminated (i) by written notice to the Trustee
and the Company from the Person or Persons who gave such Blockage Notice, (ii)
because the default giving rise to such Blockage Notice is no longer continuing
or (iii) because such Designated Senior Indebtedness has been repaid in full).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions described in the first sentence of this
paragraph), unless the holders of such Designated Senior Indebtedness or the
Representative of such holders have accelerated the maturity of such Designated
Senior Indebtedness, the Company may resume payments on the Notes after the end
of such Payment Blockage Period. The Notes shall not be subject to more than one
Payment Blockage Period in any consecutive 360-day period, irrespective of the
number of defaults with respect to Designated Senior Indebtedness during such
period.
Upon any payment or distribution of the assets of the Company upon a total
or partial liquidation or dissolution or reorganization of or similar proceeding
relating to the Company or its property, the holders of Senior Indebtedness will
be entitled to receive payment in full of such Senior Indebtedness before the
Holders are entitled to receive any payment, and until the Senior Indebtedness
is paid in full, any payment or distribution to which Holders would be entitled
but for the subordination provisions of the Indenture will be made to holders of
such Senior Indebtedness as their interests may appear. If a distribution is
made to Holders that, due to the subordination provisions, should not have been
made to them, such Holders are required to hold it in trust for the holders of
Senior Indebtedness and pay it over to them as their interests may appear.
If payment of the Notes is accelerated because of an Event of Default, the
Company or the Trustee shall promptly notify the holders of Designated Senior
Indebtedness or the Representative of such holders of the acceleration. The
Company may not pay the Notes until five Business Days after such holders or the
Representative of the Designated Senior Indebtedness receive notice of such
acceleration and, thereafter, may pay the Notes only if the subordination
provisions of the Indenture otherwise permit payment at that time.
The obligations of a Subsidiary Guarantor under its Subsidiary Guaranty are
senior subordinated obligations. As such, the rights of holders of the Notes to
receive payment by a Subsidiary Guarantor pursuant to its Subsidiary Guaranty
will be subordinated in right of payment to the rights of holders of Subsidiary
Guarantor Senior Indebtedness of such Subsidiary Guarantor. The terms of the
subordination provisions described above with respect to the Company's
obligations under the Notes apply
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equally to a Subsidiary Guarantor and the obligations of such Subsidiary
Guarantor under its Subsidiary Guaranty.
By reason of such subordination provisions contained in the Indenture, in
the event of insolvency, creditors of the Company or a Subsidiary Guarantor who
are holders of Senior Indebtedness of the Company or of Subsidiary Guarantor
Senior Indebtedness of a Subsidiary Guarantor, as the case may be, may recover
more, ratably, than the holders of the Notes, and creditors of the Company who
are not holders of Senior Indebtedness or of Senior Subordinated Indebtedness
(including the Notes) may recover less, ratably, than holders of Senior
Indebtedness and may recover more, ratably, than the holders of the Notes.
The terms of the subordination provisions described above will not apply to
payments from money or the proceeds of U.S. Government Obligations held in trust
by the Trustee for the payment of principal of and interest on the Notes
pursuant to the provisions described under "Defeasance."
Change of Control
Upon the occurrence of any of the following events (each a "Change of
Control"), each Holder shall have the right to require that the Company
repurchase such Holder's Notes at a purchase price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of repurchase (subject to the right of holders of record on the relevant record
date to receive interest due on the relevant interest payment date):
(i) Any "Person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than one or more Permitted Holders, is or becomes
the "beneficial owner" (as defined in Rules 13d3 and 13d-5 of the Exchange
Act provided that such person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 40% of the total voting power
of the Voting Stock of the Company; provided, however, that the Permitted
Holders beneficially own (as defined above), directly or indirectly, in the
aggregate a lesser percentage of the total voting power of the Voting Stock
of the Company than such other person and do not have the right or ability
by voting power, contract or otherwise to elect or designate for election a
majority of the Board of Directors (for the purposes of this clause (i),
such other person shall be deemed to beneficially own any Voting Stock of a
specified corporation held by a parent corporation, if such other person is
the beneficial owner (as defined in this clause (i)), directly or
indirectly, of more than 40% of the voting power of the Voting Stock of
such parent corporation and the Permitted Holders beneficially own (as
defined above), directly or indirectly, in the aggregate a lesser
percentage of the voting power of the Voting Stock of such parent
corporation and do not have the right or ability by voting power, contract
or otherwise to elect or designate for elect on a majority of the board of
directors of such parent corporation);
(ii) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors (together
with any new directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Company was approved by
a vote of 66 2/3% of the directors of the Company then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors then in office; or
(iii) the merger or consolidation of the Company with or into another
Person or the merger of another Person with or into the Company, or the
sale of all or substantially all the assets of the Company to another
Person (other than a Person that is controlled by the Permitted Holders),
and, in the case of any such merger or consolidation, the securities of the
Company that are outstanding immediately prior to such transaction and
which represent 100% of the aggregate voting power of the Voting Stock of
the Company are changed into or exchanged for cash, securities or property,
unless pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities of the
surviving corporation that represent immediately after
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such transaction, at least a majority of the aggregate voting power of the
Voting Stock of the surviving corporation.
Within 30 days following any Change of Control, unless the Company has
mailed a redemption notice with respect to all of the outstanding Notes in
connection with such Change of Control, the Company shall mail a notice to each
Holder with a copy to the Trustee stating: (1) that a Change of Control has
occurred and that such Holder has the right to require the Company to purchase
such Holder's Notes at a purchase price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest, if any, to the date
of repurchase (subject to the right of holders of record on the relevant record
date to receive accrued and unpaid interest on the relevant interest payment
date); (2) the circumstances and relevant facts regarding such Change of Control
(including information with respect to pro forma historical income, cash flow
and capitalization after giving effect to such Change of Control); (3) the
repurchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and (4) the instructions determined by the
Company, consistent with the covenant described hereunder, that a Holder must
follow in order to have its Notes purchased.
The Company will not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer at the same
purchase price, at the same times and otherwise in substantial compliance with
the requirements applicable to a Change of Control offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
The Company shall comply, to the extent applicable, with the requirements
of Section 14(e) of the Exchange Act and any other securities laws or
regulations in connection with the repurchase of Notes pursuant to this covenant
described hereunder. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of the covenant described hereunder,
the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under the covenant
described hereunder by virtue thereof.
The Change of Control purchase feature is a result of negotiations between
the Company and the Initial Purchasers. Management has no present intention to
engage in a transaction involving a Change of Control, although it is possible
that the Company would decide to do so in the future. Subject to the limitations
discussed below, the Company could, in the future, enter into certain
transactions, including acquisitions, refinancings or other recapitalizations,
that would not constitute a Change of Control under the Indenture, but that
could increase the amount of indebtedness outstanding at such time or otherwise
affect the Company's capital structure or credit ratings. Restrictions on the
ability of the Company to Incur additional Indebtedness are contained in the
covenants described under "-- Certain Covenants -- Limitation on Indebtedness"
and "-- Limitation on Indebtedness and Preferred Stock of Restricted
Subsidiaries." Such restrictions can only be waived with the consent of the
holders of a majority in principal amount of the Notes then outstanding. Except
for the limitations contained in such covenants, however, the Indenture will not
contain any covenants or provisions that may afford holders of the Notes
protection in the event of a highly leveraged transaction.
The Revolving Credit Facility will limit the ability of the Company to
repurchase the Notes. In the event a Change of Control occurs at a time when the
Company is prohibited from purchasing Notes, the Company could seek the consent
of its lenders to the purchase of Notes or could attempt to refinance the
borrowings that contain such prohibition. If the Company does not obtain such a
consent or repay such borrowings, the Company will remain prohibited from
purchasing Notes. In such case, the Company's failure to purchase tendered Notes
would constitute an Event of Default under the Indenture which would, in turn,
constitute a default under the Revolving Credit Facility. In such circumstances,
the subordination provisions in the Indenture would likely restrict payment to
the Holders of Notes.
Future indebtedness of the Company may contain prohibitions on the
occurrence of certain events that would constitute a Change of Control or
require such indebtedness to be repurchased upon a
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Change of Control. Moreover, the exercise by the holders of their right to
require the Company to repurchase the Notes could cause a default under such
indebtedness, even if the Change of Control itself does not, due to the
financial effect of such repurchase on the Company. Finally, the Company's
ability to pay cash to the holders of Notes following the occurrence of a Change
of Control may be limited by the Company's then existing financial resources.
There can be no assurance that sufficient funds will be available when necessary
to make any required repurchases. The provisions under the Indenture relative to
the Company's obligation to make an offer to repurchase the Notes as a result of
a Change of Control may be waived or modified with the written consent of the
holders of a majority in principal amount of the Notes.
Certain Definitions
"Additional Assets" means (i) any property or assets (other than
Indebtedness and Capital Stock) usable in an Oil and Gas Business; (ii) the
Capital Stock of a Person that becomes a Restricted Subsidiary as a result of
the acquisition of such Capital Stock by the Company or another Restricted
Subsidiary; or (iii) Capital Stock constituting a minority interest in any
Person that at such time is a Restricted Subsidiary; provided, however, that any
such Restricted Subsidiary described in clauses (ii) or (iii) above is primarily
engaged in an Oil and Gas Business.
"Adjusted Consolidated Net Tangible Assets" means (without duplication), as
of the date of determination, (a) the sum of (i) discounted future net revenues
from proved oil and gas reserves of the Company and its Restricted Subsidiaries
calculated in accordance with Commission guidelines before any state or federal
income taxes, as estimated by a nationally recognized firm of independent
petroleum engineers in a reserve report prepared as of the end of the Company's
most recently completed fiscal year, as increased by, as of the date of
determination, the estimated discounted future net revenues from (A) estimated
proved oil and gas reserves acquired since the date of such year-end reserve
report, and (B) estimated oil and gas reserves attributable to upward revisions
of estimates of proved oil and gas reserves since the date of such year-end
reserve report due to exploration, development or exploitation activities, in
each case calculated in accordance with Commission guidelines (utilizing the
prices utilized in such year-end reserve report), and decreased by, as of the
date of determination, the estimated discounted future net revenues from (C)
estimated proved oil and gas reserves produced or disposed of since the date of
such year-end reserve report and (D) estimated oil and gas reserves attributable
to downward revisions of estimates of proved oil and gas reserves since the date
of such year-end reserve report due to changes in geological conditions or other
factors which would, in accordance with standard industry practice, cause such
revisions, in each case calculated in accordance with Commission guidelines
(utilizing the prices utilized in such year-end reserve report); provided, that
in the case of each of the determinations made pursuant to clauses (A) through
(D), such increases and decreases shall be as estimated by the Company's
petroleum engineers, except that in the event there is a Material Change as a
result of such acquisitions, dispositions or revisions, then the discounted
future net revenues utilized for purposes of this clause (a)(i) shall be
confirmed in writing by a nationally recognized firm of independent petroleum
engineers, (ii) the capitalized costs that are attributable to oil and gas
properties of the Company and its Restricted Subsidiaries to which no proved oil
and gas reserves are attributable, based on the Company's books and records as
of a date no earlier than the date of the Company's latest annual or quarterly
financial statements, (iii) the Net Working Capital on a date no earlier than
the date of the Company's latest annual or quarterly financial statements and
(iv) the greater of (A) the net book value on a date no earlier than the date of
the Company's latest annual or quarterly financial statements or (B) the
appraised value, as estimated by independent appraisers, of other tangible
assets (including, without duplication, Investments in unconsolidated Restricted
Subsidiaries) of the Company and its Restricted Subsidiaries, as of the date no
earlier than the date of the Company's latest audited financial statements,
minus (b) the sum of (i) minority interests (other than a minority interest in a
Subsidiary that is a business trust or similar entity formed for the primary
purpose of issuing preferred securities the proceeds of which are loaned to the
Company or a Restricted Subsidiary), (ii) any net gas balancing liabilities of
the Company and its Restricted Subsidiaries reflected in the Company's latest
audited financial statements, (iii) to the extent
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included in (a)(i) above, the discounted future net revenues, calculated in
accordance with Commission guidelines (utilizing the prices utilized in the
Company's year-end reserve report), attributable to reserves which are required
to be delivered to third parties to fully satisfy the obligations of the Company
and its Restricted Subsidiaries with respect to Volumetric Production Payments
on the schedules specified with respect thereto and (iv) to the extent included
in (a)(i) above, the discounted future net revenues, calculated in accordance
with Commission guidelines, attributable to reserves subject to
Dollar-Denominated Production Payments which, based on the estimates of
production and price assumptions included in determining the discounted future
net revenues specified in (a)(1) above, would be necessary to fully satisfy the
payment obligations of the Company and its Restricted Subsidiaries with respect
to Dollar-Denominated Production Payments on the schedules specified with
respect thereto. For purposes of this definition and any related defined term
used herein, the calculations above will include giving effect to the Company
and its Restricted Subsidiaries' percentage interests in B8/32 Partners in
accordance with GAAP. If the Company changes its method of accounting from the
full cost method to the successful efforts method or a similar method of
accounting, "Adjusted Consolidated Net Tangible Assets" will continue to be
calculated as if the Company were still using the full cost method of
accounting.
"Affiliate" means, as to any Person, any Subsidiary of such Person and any
other Person which, directly or indirectly, controls or is controlled by or
under direct or indirect common control with such specified Person. For the
purposes of this definition, "control," when used with respect to any Person
means the possession of the power to direct or cause the direction of management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Notwithstanding the foregoing, no individual shall be an Affiliate of any Person
solely by reason of his or her being a director, officer or employee of such
Person. For purposes of the provisions described under "-- Certain
Covenants -- Limitation on Restricted Payments," "-- Certain
Covenants -- Limitation on Affiliate Transactions" and "-- Certain
Covenants -- Limitation on Sales of Assets and Subsidiary Stock" only,
"Affiliate" shall also mean any beneficial owner of Capital Stock representing
10% or more of the total voting power of the Voting Stock (on a fully diluted
basis) of the Company or of rights or warrants to purchase such Capital Stock
(whether or not currently exercisable) and any Person who would be an Affiliate
of any such beneficial owner pursuant to the first sentence hereof.
"Applicable Premium" means, with respect to a Note at any Redemption Date,
the greater of (i) 1.0% of the principal amount of such Note and (ii) the excess
of (A) the present value at such time of (1) the redemption price of such Note
at October 1, 2001 (such redemption price being described under "-- Optional
Redemption") plus (2) all required interest payments due on such Note through
October 1, 2001, computed using a discount rate equal to the Treasury Rate plus
100 basis points, over (B) the principal amount of such Note.
"Asset Disposition" means any sale, lease, transfer or other disposition
(or series of related sales, leases, transfers or dispositions) by the Company
or any Restricted Subsidiary, including any disposition by means of a merger,
consolidation or similar transaction (each referred to for the purposes of this
definition as a "disposition"), of (i) any shares of Capital Stock of a
Restricted Subsidiary (other than directors, qualifying shares or shares
required by applicable law to be held by a Person other than the Company or a
Restricted Subsidiary), (ii) all or substantially all the assets of any division
or line of business of the Company or any Restricted Subsidiary or (iii) any
other assets of the Company or any Restricted Subsidiary outside of the ordinary
course of business of the Company or such Restricted Subsidiary (other than, in
the case of (i), (ii) and (iii) above, (w) a disposition by a Restricted
Subsidiary to the Company or by the Company or a Restricted Subsidiary to a
Wholly Owned Subsidiary, (x) for purposes of the covenant described under
"-- Certain Covenants -- Limitation on Sales of Assets and Subsidiary Stock"
only, a disposition that constitutes a Restricted Payment permitted by the
covenant described under "-- Certain Covenants -- Limitation on Restricted
Payments," (y) disposition of assets with a fair market value of less than
$250,000 and (z) the relinquishment of unexplored acreage in accordance with the
Concession agreement). For purposes of this definition, the term "Asset Disposi-
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tion" shall not include (i) any trade or exchange of interest(s), either
directly or through the acquisition of the Capital Stock of a Person, in Block
B8/32 owned by the Company or any Restricted Subsidiary for any other
interest(s) in Block B8/32 owned by any other Owner of Block B8/32 or (ii) any
trade or exchange of properties and assets used in the Oil and Gas Business
(other than as described in clause (i)) or shares of Capital Stock in any Person
in the Oil and Gas Business owned by the Company or any Restricted Subsidiary
for properties and assets used in the Oil and Gas Business or shares of Capital
Stock in any Person owned or held by another Person, in each case for any
transfer of properties or assets in a single transaction or series of related
transactions having a fair market value of less than $50 million (each, an
"Asset Swap"), provided, that (A) the fair market value of the properties,
assets, shares or ownership interests in Block B8/32, as the case may be, traded
or exchanged by the Company or such Restricted Subsidiary (including any cash or
cash equivalents, not to exceed 20% of such fair market value, to be delivered
by the Company or such Restricted Subsidiary) is reasonably equivalent to the
fair market value of the properties, assets and shares of Capital Stock or
ownership interests in Block B8/32, as the case may be (together with any cash
or cash equivalents, not to exceed 20% of such fair market value), to be
received by the Company or such Restricted Subsidiary as determined in good
faith by the Board of Directors of the Company as certified by a certified
resolution delivered to the Trustee if such fair market value is equal to or in
excess of $5 million, provided, that if such resolution indicates that such fair
market value is equal to or in excess of $20 million such resolution shall be
accompanied by a written appraisal by a nationally recognized investment banking
firm or appraisal firm, in each case specializing or having a specialty in oil
and gas properties, and (B) such exchange is approved by a majority of the
Disinterested Directors of the Company.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means, as at
the time of determination, the present value (discounted at the interest rate
borne by the Notes, compounded annually) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended).
"Average Life" means, as of the date of determination, with respect to any
Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the sum
of the products of numbers of years from the date of determination to the dates
of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred Stock multiplied by
the amount of such payment by (ii) the sum of all such payments.
"Banks" has the meaning specified in the Revolving Credit Facility.
"Bank Indebtedness" means any and all amounts, whether outstanding on the
Issue Date or thereafter Incurred, payable by the Company under or in respect of
the Revolving Credit Facility and any related notes, collateral documents,
letters of credit and guarantees, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any of its
Subsidiaries whether or not a claim for post filing interest is allowed in such
proceedings), fees, charges, expenses, reimbursement obligations, guarantees and
all other amounts payable thereunder or in respect thereof.
"B8/32 Joint Operating Agreement" means, collectively, (i) the Joint
Operating Agreement dated as of August 1, 1990 between Maersk, Thai Romo,
Thaipo, and Sophonpanich, (ii) the Transfer Agreement dated March 2, 1995
between Maersk, Thai Romo, Thaipo, and Sophonpanich, whereby Maersk agrees to
convey its interest and operatorship in respect of the Tantawan Area of Block
B8/32 to Thaipo and (iii) the Agreement of Operatorship and Conveyance of
Interest dated as of March 3, 1995 between Maersk and Thaipo, in each case as
the same may be modified, supplemented and in effect from time to time.
"B8/32 Partners" shall mean B8/32 Partners Ltd. (formerly known as Maersk
Oil (Thailand) Ltd.), a limited liability company organized under the laws of
the Kingdom of Thailand.
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of such Board.
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"Business Day" means any day on which commercial banks are not authorized
or required to close in New York City.
"Capital Lease Obligations" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Captive Insurance Company" means any Wholly Owned Subsidiary of the
Company that provides insurance or reinsurance to the Company and its Restricted
Subsidiaries.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodity Hedging Agreement" shall mean, for any Person, an agreement or
arrangement between such Person and one or more financial institutions or other
entities providing for the transfer or mitigation of risks of fluctuations in
the prices of hydrocarbons, either generally or under specific circumstances.
"Consolidated Coverage Ratio" as of any date of determination means the
ratio of (i) the aggregate amount of EBITDA for the period of the most recent
four consecutive fiscal quarters for which financial statements are available
prior to the date of such determination to (ii) Consolidated Interest Expense
for such four fiscal quarters; provided, however, that (1) if the Company or any
Restricted Subsidiary has Incurred any Indebtedness since the beginning of such
period that remains outstanding or if the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness, or
both, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such Indebtedness as if
such Indebtedness had been Incurred on the first day of such period and the
discharge of any other Indebtedness repaid, repurchased, defeased or otherwise
discharged with the proceeds of such new Indebtedness as if such discharge had
occurred on the first day of such period, (2) if the Company or any Restricted
Subsidiary has repaid, repurchased, defeased or otherwise discharged any
Indebtedness since the beginning of such period or if any Indebtedness is to be
repaid, repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on the date
of the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio, EBITDA and Consolidated Interest Expense for such period shall
be calculated on a pro forma basis as if such discharge had occurred on the
first day of such period and as if the Company or such Restricted Subsidiary has
not earned the interest income actually earned during such period in respect of
cash or Temporary Cash Investments used to repay, repurchase, defease or
otherwise discharge such Indebtedness, (3) if since the beginning of such period
the Company or any Restricted Subsidiary shall have made any Asset Disposition,
the EBITDA for such period shall be reduced by an amount equal to the EBITDA (if
positive) directly attributable to the assets which are the subject of such
Asset Disposition for such period, or increased by an amount equal to the EBITDA
(if negative), directly attributable thereto for such period and Consolidated
Interest Expense for such period shall be reduced by an amount equal to the
Consolidated Interest Expense directly attributable to any Indebtedness of the
Company or any Restricted Subsidiary repaid, repurchased, defeased or otherwise
discharged with respect to the Company and its continuing Restricted
Subsidiaries in connection with such Asset Disposition for such period (or, if
the Capital Stock of any Restricted Subsidiary is sold, the Consolidated
Interest Expense for such period directly attributable to the Indebtedness of
such Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such Indebtedness after such
sale), (4) if since the beginning of such period the Company or any Restricted
Subsidiary (by merger or otherwise) shall have made an
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Investment in any Restricted Subsidiary (or any person which becomes a
Restricted Subsidiary) or an acquisition of assets, including any acquisition of
assets occurring in connection with a transaction requiring a calculation to be
made hereunder, which constitutes all or substantially all of an operating unit
of a business, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto (including the Incurrence of
any Indebtedness) as if such Investment or acquisition occurred on the first day
of such period and (5) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period) shall
have made any Asset Disposition, any Investment or acquisition of assets that
would have required an adjustment pursuant to clause (3) or (4) above if made by
the Company or a Restricted Subsidiary during such period, EBITDA and
Consolidated Interest Expense for such period shall be calculated after giving
pro forma effect thereto as if such Asset Disposition, Investment or acquisition
occurred on the first day of such period. For purposes of this definition and
any related defined terms used herein, the calculations above will include
giving effect to the Company and its Restricted Subsidiaries' percentage
interests in B8/32 Partners in accordance with GAAP. For purposes of this
definition, whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto and the amount of
Consolidated Interest Expense associated with any Indebtedness Incurred in
connection therewith, the pro forma calculations shall be determined in good
faith by a responsible financial or accounting Officer of the Company. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest of such Indebtedness shall be calculated as if the rate in
effect on the date of determination had been the applicable rate for the entire
period (taking into account any Interest Rate Agreement applicable to such
Indebtedness during such period).
"Consolidated Interest Expense" means, for any period, the total interest
expense of the Company and its consolidated Restricted Subsidiaries as
determined in accordance with GAAP, plus, to the extent not included in such
total interest expense, and to the extent incurred by the Company or its
Restricted Subsidiaries, without duplication, (i) interest expense attributable
to capital leases and the interest expense attributable to leases constituting
part of a Sale/Leaseback Transaction, (ii) amortization of debt discount and
debt issuance cost, (iii) capitalized interest, (iv) non-cash interest expenses,
(v) commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing, (vi) net costs associated
with Interest Rate Agreements (including amortization of fees), (vii) Preferred
Stock dividends in respect of all Preferred Stock held by Persons other than the
Company or a Wholly Owned Subsidiary, (viii) interest incurred in connection
with Investments in discontinued operations, (ix) interest accruing on any
Indebtedness of any other Person to the extent such Indebtedness is Guaranteed
by (or secured by the assets of) the Company or any Restricted Subsidiary and
(x) the cash contributions to any employee stock ownership plan or similar trust
to the extent such contributions are used by such plan or trust to pay interest
or fees to any Person (other than the Company) in connection with Indebtedness
Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net income of the
Company and its consolidated Subsidiaries as determined in accordance with GAAP;
provided, however, that there shall not be included in such Consolidated Net
Income:
(i) any net income of any Person (other than the Company) if such
Person is not a Restricted Subsidiary, except that (A) subject to the
exclusion contained in clause (iv) below, the Company's equity in the net
income of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in the
case of a dividend or other distribution paid to a Restricted Subsidiary,
to the limitations contained in clause (iii) below) and (B) the Company's
equity in a net loss of any such Person for such period shall be included
in determining such Consolidated Net Income;
(ii) any net income (or loss) of any Person acquired by the Company or
a Subsidiary in a pooling of interests transaction for any period prior to
the date of such acquisition;
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(iii) any net income of any Restricted Subsidiary if such Restricted
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company, except that (A) subject
to the exclusion contained in clause (iv) below, the Company's equity in
the net income of any such Restricted Subsidiary for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Restricted Subsidiary during such period to
the Company or another Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution paid
to another Restricted Subsidiary, to the limitation contained in this
clause) and (B) the Company's equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining such
Consolidated Net Income;
(iv) any gain (but not loss) realized upon the sale or other
disposition of any assets of the Company, its consolidated Subsidiaries or
any other Person (including pursuant to any sale-and-leaseback arrangement)
which is not sold or otherwise disposed of in the ordinary course of
business and any gain (but not loss) realized upon the sale or other
disposition of any Capital Stock of any Person;
(v) any write-downs of non-current assets;
(vi) extraordinary gains or losses; and
(vii) the cumulative effect of a change in accounting principles.
Notwithstanding the foregoing, for the purposes of the covenant described
under "Certain Covenants -- Limitation on Restricted Payments" only, there shall
be excluded from Consolidated Net Income any dividends, repayments of loans or
advances or other transfers of assets from Unrestricted Subsidiaries to the
Company or a Restricted Subsidiary to the extent such dividends, repayments or
transfers are actually used to increase the amount of Restricted Payments
permitted under such covenant pursuant to clause (a)(3)(D) thereof.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and its consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP, as of the end of the most recent
fiscal quarter of the Company ending at least 45 days prior to the taking of any
action for the purpose of which the determination is being made, as (i) the par
or stated value of all outstanding Capital Stock of the Company plus (ii)
paid-in capital or capital surplus relating to such Capital Stock plus (iii) any
retained earnings or earned surplus less (A) any accumulated deficit and (B) any
amounts attributable to Disqualified Stock.
"Currency Agreement" means in respect of a Person any foreign exchange
contract, currency swap agreement or other similar agreement designed to protect
such Person against fluctuations in currency values.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Designated Senior Indebtedness" means (i) the Bank Indebtedness and (ii)
any other Senior Indebtedness of the Company which, at the date of Incurrence,
has an aggregate principal amount outstanding of, or under which, at the date of
Incurrence, the holders thereof are committed to lend up to, at least $25
million and is specifically designated by the Company in the instrument
evidencing or governing such Senior Indebtedness as "Designated Senior
Indebtedness" for purposes of the Indenture.
"Disinterested Director" means, with respect to any transaction or series
of transactions in respect of which the Board of Directors is required to
deliver its resolution under the Indenture, a member of the Board of Directors
who does not have any material direct or indirect financial interest (other than
an interest arising solely from the beneficial ownership of Capital Stock of the
Company) in or with respect to such transaction or series of transactions.
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"Disqualified Stock" means, with respect to any Person, any Capital Stock
which by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or upon the happening of any event (i) matures
or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise,
(ii) is convertible or exchangeable for Indebtedness or Disqualified Stock or
(iii) is redeemable at the option of the holder thereof, in whole or in part, in
each case on or prior to the first anniversary of the Stated Maturity of the
Notes; provided, however, that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require such Person to repurchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring prior to the
first anniversary of the Stated Maturity of the Notes shall not constitute
Disqualified Stock if the "asset sale" or "change of control," provisions
applicable to such Capital Stock are not more favorable to the holders of such
Capital Stock than the provisions described under "-- Change of Control" and
"-- Certain Covenants -- Limitation on Sales of Assets and Subsidiary Stock."
"Dollar-Denominated Production Payments" means production payment
obligations of the Company or any Subsidiary Guarantor which are payable from a
specified share of proceeds received from production from specific Properties,
together with all undertakings and obligations in connection therewith.
"EBITDA" for any period means the sum of Consolidated Net Income, plus
Consolidated Interest Expense plus the following to the extent deducted in
calculating such Consolidated Net Income: (a) all income tax expense of the
Company and its consolidated Restricted Subsidiaries and (b) the aggregate
depreciation, depletion, amortization, impairment and other non-cash expenses or
charges of the Company and its consolidated Restricted Subsidiaries reducing
Consolidated Net Income for such period, determined on a consolidated basis in
accordance with GAAP (excluding any such non-cash expense or charge to the
extent that it represents an accrual of or reserve for cash expenditures in any
future period), in each case for such period decreased (to the extent included
in determining Consolidated Net Income) by the sum of (i) the amount of deferred
revenues that are amortized during such period and are attributable to reserves
that are subject to Volumetric Production Payments and (ii) amounts recorded in
accordance with GAAP as repayments of principal and interest pursuant to
Dollar-Denominated Production Payments during such period. Notwithstanding the
foregoing, the provision for taxes based on the income or profits of, and the
depreciation and amortization and non-cash charges of, a Restricted Subsidiary
shall be added to Consolidated Net Income to compute EBITDA only to the extent
(and in the same proportion) that the net income of such Restricted Subsidiary
was included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to the
Company by such Restricted Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to such Restricted Subsidiary or its stockholders.
"Equity Offering" means an underwritten primary public offering of common
stock of the Company pursuant to an effective registration statement under the
Securities Act.
"Event of Default" has the meaning set forth below under "-- Defaults."
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the Issue Date, including those set forth in (i)
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants (the "AICPA"), (ii)
statements and pronouncements of the Financial Accounting Standards Board of the
AICPA, (iii) such other statements by such other entity as approved by a
significant segment of the accounting profession and (iv) the rules and
regulations of the Commission governing the inclusion of financial statements
(including pro forma financial statements) in periodic reports required to be
filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements from
the accounting staff of the Commission.
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"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any Person and any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such Person (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning. The term "Guarantor" shall mean any
Person Guaranteeing any obligation.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any Interest Rate Agreement, Currency Agreement or Commodity Hedging
Agreement entered into in the ordinary course of business and not for
speculation, including without limitation, swaps, options, forward sales and
futures contracts entered into in connection with interest rates, currencies and
energy related commodities.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become liable
for; provided, however, that any Indebtedness or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary. The term "Incurrence, when used
as a noun shall have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(i) the principal in respect of (A) indebtedness of such Person for
money borrowed and (B) indebtedness evidenced by notes, debentures, bonds
or other similar instruments for the payment of which such Person is
responsible or liable, including, in each case, any premium on such
indebtedness to the extent such premium has become due and payable,
excluding trade accounts payable and other current liabilities incurred in
the ordinary course of business;
(ii) all Capital Lease Obligations of such Person and all Attributable
Debt in respect of Sale/Leaseback Transactions entered into by such Person;
(iii) all obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such Person
and all obligations of such Person under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of
business);
(iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit
securing obligations (other than obligations described in clauses (i)
through (iii) above) entered into in the ordinary course of business of
such Person) to the extent such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no later than the
tenth Business Day following payment on the letter of credit);
(v) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary of such Person, the liquidation preference
with respect to, any Preferred Stock (but excluding, in each case, any
accrued dividends);
(vi) all obligations of the type referred to in clauses (i) through
(v) of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or
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liable, directly or indirectly, as obligor, guarantor or otherwise,
including by means of any Guarantee;
(vii) all obligations of the type referred to in clauses (i) through
(vi) of other Persons secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of
such property or assets or the amount of the obligation so secured;
(viii) all Production Payments granted by such Person but solely to
the extent of any warranties or guarantees of production or payment by such
Person with respect to such Production Payment; and
(ix) to the extent not otherwise included in this definition, Hedging
Obligations of such Person granted by such Person.
Notwithstanding clauses (i) through (ix) above, the term "Indebtedness"
shall not include any of the foregoing which are subject to irrevocable legal
defeasance in accordance with the terms thereof. When used with respect to Thai
Romo or any other Restricted Subsidiary that owns an interest in any field or
area but which is not the operator of such hydrocarbon interest, "Indebtedness"
shall include Thai Romo's or such other Restricted Subsidiary's obligations to
reimburse the operator under the Operating Agreement or the Joint Operating
Agreement, or similar agreement in the case of such other Restricted Subsidiary,
for Thai Romo's or such other Restricted Subsidiary's pro rata share of payments
made by such operator in respect of Indebtedness incurred by such operator in
connection with transactions under such agreements.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date.
"Interest Rate Agreement" means in respect of a Person any interest rate
swap agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect such Person against fluctuations in interest
rates.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers or extensions of trade credit not in excess of
90 days in the ordinary course of business that are recorded as accounts
receivable on the balance sheet of the lender) or other extensions of credit
(including by way of Guarantee or similar arrangement) or capital contribution
to (by means of any transfer of cash or other property to others or any payment
for property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar instruments issued
by such Person. For purposes of the definition of "Unrestricted Subsidiary," the
definition of "Restricted Payment" and the covenant described under "-- Certain
Covenants -- Limitation on Restricted Payments," (i) "Investment" shall include
the portion (proportionate to the Company's equity interest in such Subsidiary)
of the fair market value of the net assets of any Subsidiary of the Company at
the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company shall be deemed to continue to have a permanent
"Investment" in an Unrestricted Subsidiary equal to an amount (if positive)
equal to (x) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (y) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time of such redesignation; and (ii) any property transferred
to or from an Unrestricted Subsidiary shall be valued at its fair market value
at the time of such transfer, in each case as determined in good faith by the
Board of Directors.
"Issue Date" means the date on which the Notes are originally issued.
"Joint Operating Agreements" means the B8/32 Joint Operating Agreement and
the Tantawan Joint Operating Agreement.
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"Lien" means, with respect to any Property, any assignment in trust,
mortgage, lien, pledge, charge, fiduciary or security assignment, security
interest or encumbrance of any kind in respect of such Property (including,
without limitation, any Production Payment, advance, payment or similar
arrangement with respect to minerals in place). For purposes of the foregoing, a
Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
(other than an operating lease) relating to such Property.
"Material Change" means an increase or decrease (excluding changes that
result solely from changes in prices) of more than 25% during a fiscal quarter
in the estimated discounted future net cash flows from proved oil and gas
reserves of the Company and its Restricted Subsidiaries, calculated in
accordance with clause (a)(i) of the definition of Adjusted Consolidated Net
Tangible Assets; provided, however, that the following will be excluded from the
calculation of Material Change: (i) any acquisitions during the quarter of oil
and gas reserves that have been estimated by a nationally recognized firm of
independent petroleum engineers and on which a report or reports exist and (ii)
any disposition of properties held at the beginning of such quarter that have
been disposed of as provided in the covenant described under the caption
"Certain Covenants -- Limitation on Sales of Assets and Subsidiary Stock."
"Net Available Cash" from an Asset Disposition means cash payments received
therefrom (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise and proceeds
from the sale or other disposition of any securities received as consideration,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to such properties or assets or received in any other
noncash form), in each case net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses incurred, and all Federal,
state, provincial, foreign and local taxes required to be accrued as a liability
under GAAP, as a consequence of such Asset Disposition, (ii) all payments made
on any Indebtedness which is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any Lien upon or other security
agreement of any kind with respect to such assets, or which must by its terms,
or in order to obtain a necessary consent to such Asset Disposition, or by
applicable law, be repaid out of the proceeds from such Asset Disposition, (iii)
all distributions and other payments required to be made to minority interest
holders in Restricted Subsidiaries as a result of such Asset Disposition and
(iv) the deduction of appropriate amounts provided by the seller as a reserve,
in accordance with GAAP, against any liabilities associated with the property or
other assets disposed in such Asset Disposition and retained by the Company or
any Restricted Subsidiary after such Asset Disposition; provided, that any
amounts remaining after any adjustment, realization or liquidation of such
reserve shall constitute Net Available Cash.
"Net Cash Proceeds," with respect to any issuance or sale of Capital Stock,
means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees and expenses actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Net Working Capital" means (a) all current assets of the Company and its
Restricted Subsidiaries, minus (b) all current liabilities of the Company and
its Restricted Subsidiaries, except current liabilities included in
Indebtedness, in each case as set forth in financial statements of the Company
prepared in accordance with GAAP.
"Non-Recourse Indebtedness" means Indebtedness or that portion of
Indebtedness of the Company or a Restricted Subsidiary incurred in connection
with the acquisition by the Company or a Restricted Subsidiary of any property
or assets and as to which (a) the holders of such Indebtedness agree that they
will look solely to the property or assets so acquired and securing such
Indebtedness for payment on or in respect of such Indebtedness and (b) no
default with respect to such Indebtedness of the Company or a Restricted
Subsidiary, will entitle (after notice or passage of time or both) any holder
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of any other Indebtedness of the Company or a Restricted Subsidiary to declare a
default under such other Indebtedness or cause the payment of such other
Indebtedness to be accelerated or payable prior to its stated maturity.
"Officer's Certificate" means a certificate signed by the Chairman, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company.
"Oil and Gas Business" means (a) the acquisition, exploration,
exploitation, development, operation and disposition of interests in oil, gas
and other hydrocarbon properties, (b) the gathering, marketing, treating,
processing, refining, storage, selling and transporting of any production from
such interests or properties, (c) any business relating to or arising from
exploration for or exploitation, development, production, treatment, processing,
refining storage, transportation or marketing of oil, gas and other minerals and
products produced in association therewith, and (d) any activity necessary,
appropriate, complementary or incidental to the activities described in the
foregoing clauses (a) through (c) of this definition.
"Operating Agreement" shall mean the Operating Agreement between SBM Marine
Services Thailand Ltd. and Tantawan Services, LLC, dated February 9, 1996,
relating to the operation of the "TANTAWAN EXPLORER," as the same may be
modified, supplemented and in effect from time to time.
"Opinion of Counsel" means a written opinion of legal counsel for the
Company (or any Subsidiary Guarantor, if applicable) including an employee of
the Company (or any Subsidiary Guarantor, if applicable), who is reasonably
acceptable to the Trustee.
"Owners of Block B8/32" means, as of any date of determination, any Person
that directly owns an interest in the Concession.
"Permitted Holders" means (i) John A. Moran, Patrick R. Rutherford, their
respective spouses, issue or any spouse of their issue, (ii) any Person
controlled directly or indirectly by any one or more of the Persons referred to
in clause (i), (iii) any trust, all of the beneficiaries of which are any one or
more of the persons referred to in clause (i), or (iv) any bona fide legal
representative of any of the individuals in clause (i) duly appointed as a
result of the death or legal incapacity of such individual.
"Permitted Investment" means an Investment by the Company or any Restricted
Subsidiary in (i) the Company, a Restricted Subsidiary or a Person that will,
upon the making of such Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary is an Oil and
Gas Business; (ii) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Restricted Subsidiary;
provided, however, that such Person's primary business is an Oil and Gas
Business; (iii) Temporary Cash Investments; (iv) receivables owing to the
Company or any Restricted Subsidiary if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms; provided, however, that such trade terms may include such
concessionary trade terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances; (v) payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary
course of business; (vi) loans or advances to employees made in the ordinary
course of business consistent with past practices of the Company or such
Restricted Subsidiary; (vii) stock, obligations or securities received in
settlement of debts created in the ordinary course of business and owing to the
Company or any Restricted Subsidiary or in satisfaction of judgments; (viii)
Hedging Obligations; (ix) entry into operating agreements, joint ventures,
partnership agreements, concession agreements, working interests, royalty
interests, mineral leases, processing agreements, farm-out agreements, contracts
for the sale, transportation or exchange of oil and natural gas, unitization
agreements, pooling arrangements, area of mutual interest agreements or other
similar or customary agreements, transactions, properties, interest or
arrangements, and Investments and expenditures in connection therewith or
pursuant thereto, in each case made or entered into in the ordinary course of
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the Company's or its Restricted Subsidiaries' Oil and Gas Business; (x) B8/32
Partners in an amount up to 46.35% of the share capital of B8/32 Partners; (xi)
the Capital Stock or Indebtedness of a Captive Insurance Company in an amount
sufficient for such Captive Insurance Company to maintain sufficient capital to
provide insurance or reinsurance coverage to the Company or its Restricted
Subsidiaries in amounts which are customary for the Oil and Gas Business
conducted by the Company and its Restricted Subsidiaries; and (xii) any Person
to the extent such Investment represents the non-cash portion of the
consideration received for an Asset Disposition as permitted pursuant to the
covenant described under "-- Certain Covenants -- Limitation on Sales of Assets
and Subsidiary Stock."
"Person" means any individual, corporation, company, voluntary association,
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof.
"Pledge Account" means an account established with the Trustee pursuant to
the terms of the Indenture for the deposit of the Pledged Securities to be
purchased by the Company with a portion of the net proceeds from the sale of the
Notes.
"Pledged Securities" means the U.S. government securities to be purchased
by the Company and held in the Pledge Account in accordance with the Indenture.
"Preferred Stock," as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
"Principal" of a Note means the principal of the Note plus the premium, if
any, payable on the Note which is due or overdue or is to become due at the
relevant time.
"Production Payment" means, collectively, Dollar-Denominated Production
Payments and Volumetric Production Payments.
"Property" means any property of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible, including any right or
interest therein or thereto.
"Refinance" means, in respect of any Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Indebtedness in exchange or replacement for, such indebtedness. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on the Issue
Date or Incurred in compliance with the Indenture, including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that (i) such
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced, (ii) such Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being Refinanced and (iii) such Refinancing Indebtedness has an aggregate
principal amount (or if Incurred with original issue discount, an aggregate
issue price) that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced; provided further,
however, that Refinancing Indebtedness shall not include (x) Indebtedness of a
Subsidiary that Refinances Indebtedness of the Company or (y) Indebtedness of
the Company or a Restricted Subsidiary that Refinances Indebtedness of an
Unrestricted Subsidiary.
"Registrar" means Bank of Montreal Trust Company.
"Representative" means any trustee, agent or representative (if any) for an
issue of Senior Indebtedness.
"Restricted Payment" with respect to any Person means (i) the declaration
or payment of any dividends or any other distributions of any sort in respect of
its Capital Stock (including any payment in connection with any merger or
consolidation involving such Person) or similar payment to the direct or
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indirect holders of its Capital Stock (other than dividends or distributions
payable solely in its Capital Stock (other than Disqualified Stock) and
dividends or distributions payable solely to the Company or a Restricted
Subsidiary, and other than pro rata dividends or other distributions made by a
Subsidiary that is not a Wholly Owned Subsidiary to minority stockholders (or
owners of an equivalent interest in the case of a Subsidiary that is an entity
other than a corporation)), (ii) the purchase, redemption or other acquisition
or retirement for value of any Capital Stock of the Company held by any Person
or of any Capital Stock of a Restricted Subsidiary held by any Affiliate of the
Company (other than a Restricted Subsidiary), including the exercise of any
option to exchange any Capital Stock (other than into Capital Stock of the
Company that is not Disqualified Stock), (iii) the purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment of any
Subordinated Obligations (other than the purchase, repurchase or other
acquisition of Subordinated Obligations purchased in anticipation of satisfying
a sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of acquisition) or (iv) the making of any
Investment in any Person (other than a Permitted Investment).
"Restricted Subsidiary" means any Subsidiary of the Company that is not an
Unrestricted Subsidiary.
"Revolving Credit Facility" means (i) the Credit Agreement dated as of
September 20, 1996, among the Company, RMEC, TRH, Thai Romo, the other
Subsidiary Guarantors party thereto, the Lenders party thereto and Chase, as
administrative agent, as the same may be amended, modified, supplemented and in
effect from time to time (the "Credit Agreement") and (ii) any renewal,
extension, refunding, restructuring, replacement or refinancing thereof (whether
with the original Administrative Agent and lenders or another administrative
agent or agent or other lenders and whether provided under the original Credit
Agreement or any other agreement).
"Sale/Leaseback Transaction" means an arrangement relating to property now
owned or hereafter acquired whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or a Subsidiary leases it
from such Person.
"Secured Indebtedness" means any Indebtedness of the Company or a
Subsidiary Guarantor secured by a Lien.
"Senior Indebtedness" means (i) Indebtedness of the Company, whether
outstanding on the Issue Date or thereafter Incurred, and (ii) accrued and
unpaid interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company to the
extent post-filing interest is allowed in such proceeding) in respect of (A)
indebtedness of the Company for money borrowed and (B) indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the payment of which
the Company is responsible or liable unless, in the case of (i) and (ii), in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligations are subordinate in right of
payment to the Notes; provided, however, that Senior Indebtedness shall not
include (1) any obligation of the Company to any Subsidiary, (2) any liability
for Federal, state, local or other taxes owed or owing by the Company (3) any
accounts payable or other liability to trade creditors arising in the ordinary
course of business (including guarantees thereof or instruments evidencing such
liabilities), (4) any Indebtedness of the Company (and any accrued and unpaid
interest in respect thereof) which is subordinate or junior in any respect to
any other Indebtedness or other obligation of the Company or (5) that portion of
any Indebtedness which at the time of Incurrence is Incurred in violation of the
Indenture (but, as to any such Indebtedness, no such violation shall be deemed
to exist for purposes of this clause (5) if the holder(s) of such Indebtedness
or their representative or the Company shall have furnished to the Trustee an
opinion of counsel unqualified in all material respects of independent legal
counsel, addressed to the Trustee (which legal counsel may, as to matters of
fact, including financial covenant compliance calculations, rely upon a
certificate of the Company) to the effect that the Incurrence of such
Indebtedness does not violate the provisions of the Indenture; provided that the
foregoing exclusions shall not affect the priorities of any Indebtedness
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arising solely by operation of law in any bankruptcy, insolvency, receivership,
liquidation, reorganization, assignment for the benefit of creditors or other
similar event, case or proceeding.
"Senior Subordinated Indebtedness" means the Notes and any other
Indebtedness of the Company that specifically provides that such Indebtedness is
to rank pari passu with the Notes in right of payment and is not subordinated by
its terms in right of payment to any Indebtedness or other obligation of the
Company which is not Senior Indebtedness.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the final payment of principal of
such security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the Company (whether
outstanding on the Issue Date or thereafter Incurred) which is subordinate or
junior in right of payment to the Notes pursuant to a written agreement to that
effect.
"Subsidiary" means, in respect of any Person, any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"Subsidiary Guarantor" means each Subsidiary of the Company in existence on
the Issue Date and each Subsidiary (other than Unrestricted Subsidiaries)
created or acquired by the Company after the Issue Date.
"Subsidiary Guarantor Senior Indebtedness" means, with respect to any
Subsidiary Guarantor, whether outstanding on the Issue Date or thereafter
issued, any Guarantee of the Bank Indebtedness by such Subsidiary Guarantor, all
other Guarantees by such Subsidiary Guarantor of Senior Indebtedness of the
Company and all Indebtedness of such Subsidiary Guarantor, including interest
and fees thereon, unless, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that the obligations
of such Subsidiary Guarantor in respect of such Indebtedness are not superior in
right of payment to the obligations of such Subsidiary Guarantor under the
Subsidiary Guaranty; provided, however, that Subsidiary Guarantor Senior
Indebtedness shall not include (1) any obligations of such Subsidiary Guarantor
to the Company or any other Subsidiary of the Company, (2) any liability for
Federal, state, local or other taxes owed or owing by such Subsidiary Guarantor,
(3) any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including Guarantees thereof or instruments
evidencing such liabilities) or (4) any Indebtedness, Guarantee or obligation of
such Subsidiary Guarantor that is expressly subordinate or junior in right of
payment to any other Indebtedness, Guarantee or obligation of such Subsidiary
Guarantor, including any Subsidiary Guarantor Senior Subordinated Indebtedness
and Subsidiary Guarantor Subordinated Obligations of such Subsidiary Guarantor.
"Subsidiary Guarantor Senior Subordinated Indebtedness" means with respect
to a Subsidiary Guarantor, the obligations of such Subsidiary Guarantor under
the Subsidiary Guaranty and any other Indebtedness of such Subsidiary Guarantor
that specifically provides that such Indebtedness is to rank pari passu in right
of payment with the obligations of such Subsidiary Guarantor under the
Subsidiary Guaranty and is not subordinated by its terms in right of payment to
any Indebtedness or other obligation of such Subsidiary Guarantor which is not
Subsidiary Guarantor Senior Indebtedness of such Subsidiary Guarantor.
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"Subsidiary Guarantor Subordinated Obligation" means, with respect to a
Subsidiary Guarantor, any indebtedness of such Subsidiary Guarantor (whether
outstanding on the Issue Date or thereafter Incurred) which is subordinate or
junior in right of payment to the obligations of such Subsidiary Guarantor under
the Subsidiary Guaranty pursuant to a written agreement.
"Subsidiary Guaranty" means the Guarantee of the Notes by a Subsidiary
Guarantor.
"Tantawan Joint Operating Agreement" means the Joint Operating Agreement
dated as of March 3, 1995 among Thaipo, Thai Romo and Sophonpanich.
"Temporary Cash Investments" means any of the following:
(i) any investment in direct obligations of the United States of
America or any agency thereof or obligations guaranteed by the United
States of America or any agency thereof,
(ii) investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 180 days of the date of acquisition
thereof issued by a bank or trust company which is organized under the laws
of the United States of America, any state thereof or any foreign country
recognized by the United States, and which bank or trust company has
capital, surplus and undivided profits aggregating in excess of $50 million
(or the foreign currency equivalent thereof) and has, or whose parent
holding company has, outstanding debt which is rated "A" (or such similar
equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the
Securities Act) or any money market fund sponsored by a registered broker
dealer or mutual fund distributor,
(iii) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (i) above entered
into with a bank meeting the qualifications described in clause (ii) above,
(iv) investments in commercial paper, maturing not more than 90 days
after the date of acquisition, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under the laws of the
United States of America or any foreign country recognized by the United
States of America with a rating at the time as of which any investment
therein is made of "P-1" (or higher) according to Moody's Investors
Service, Inc. or "A-1" (or higher) according to Standard and Poor's Ratings
Group, and
(v) investments in securities with maturities of six months or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A"
by Standard & Poor's Ratings Group or "A" by Moody's Investors Service,
Inc.
"Treasury Rate" means the yield to maturity at the time of computation of
United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519)
which has become publicly available at least two business days prior to the
Redemption Date (or, if such Statistical Release is no longer published, any
publicly available source or similar market data)) most nearly equal to the
period from the Redemption Date to October 1, 2001; provided, however, that if
the period from the Redemption Date to October 1 , 2001 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of the United States Treasury securities for which such yields
are given, except that if the period from the Redemption Date to October 1, 2001
is less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at
the time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any
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Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of
its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; provided, however, that
either (A) the Subsidiary to be so designated has total assets of $1,000 or less
or (B) if such Subsidiary has assets greater than $1,000, such designation would
be permitted under the covenant described under "-- Certain
Covenants -- Limitation on Restricted Payments". The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
however, that immediately after giving effect to such designation (x) the
Company could Incur $1.00 of additional Indebtedness under paragraph (a) of the
covenant described under "-- Certain Covenants -- Limitation on Indebtedness"
and (y) no Default shall have occurred and be continuing. Any such designation
by the Board of Directors shall be evidenced to the Trustee by promptly filing
with the Trustee a copy of the resolution of the Board of Directors giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
"Volumetric Production Payments" means production payment obligations of
the Company or any Subsidiary Guarantor or any of its Subsidiaries which are
payable from a specified share of production from specific Properties, together
with all undertakings and obligations in connection therewith.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all the Capital
Stock of which (other than directors' qualifying shares) is owned by the Company
or one or more Wholly Owned Subsidiaries provided, that, if such Restricted
Subsidiary is required by the applicable laws of a foreign jurisdiction to be
partially owned by the government of such foreign jurisdiction or individual or
corporate citizens of such foreign jurisdiction, such Restricted Subsidiary
shall be deemed a Wholly Owned Subsidiary so long as the Company or another
Restricted Subsidiary owns the remaining Capital Stock or ownership interest in
such Restricted Subsidiary and, by contract or otherwise, controls the
management and business of such Restricted Subsidiary and derives the economic
benefits of ownership of such restricted Subsidiary to substantially the same
extent as if such Restricted Subsidiary were a wholly owned Subsidiary.
Certain Covenants
The Indenture contains covenants including, among others, the following:
Limitation on Indebtedness. (a) The Company shall not and shall not permit
any of its Restricted Subsidiaries to Incur, directly or indirectly, any
Indebtedness unless, on the date of such Incurrence and after giving effect
thereto, (i) the Consolidated Coverage Ratio exceeds 1.75 to 1.00 for any period
ending prior to or including the first anniversary of the Closing Date, 2.00 to
1.00 for any period thereafter ending prior to or including the second
anniversary of the Closing Date, and 2.50 to 1.00 for any period thereafter and
(ii) no Default or Event of Default would occur or be continuing.
(b) Notwithstanding the foregoing paragraph (a), the Company and its
Restricted Subsidiaries may Incur any or all of the following Indebtedness:
(1) Indebtedness Incurred pursuant to the Revolving Credit Facility
(including, without limitation, any renewal, extension, refunding,
restructuring, replacement or refinancing thereof referred to in clause
(ii) of the definition thereof); provided that the aggregate principal
amount of all Indebtedness Incurred pursuant to this clause (1) does not
exceed an amount equal to the sum of (x)
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$150 million and (y) 20% of Adjusted Consolidated Net Tangible Assets
determined as of the date of the most recent quarterly consolidated
financial statements of the Company and its Restricted Subsidiaries, less
the amount of Net Available Cash applied to reduce Senior Indebtedness or
Indebtedness pursuant to the covenant of the Indenture described under
"-- Certain Covenants -- Limitation on Sales of Assets and Subsidiary
Stock";
(2) Indebtedness represented by Capitalized Lease Obligations,
mortgage financings or purchase money obligations, in each case Incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property used in an Oil and Gas Business
or Incurred to Refinance any such purchase price or cost of construction or
improvement, in each case Incurred no later than 365 days after the date of
such acquisition or the date of completion of such construction or
improvement; provided, however, that the principal amount of any
Indebtedness Incurred pursuant to this clause (2) shall not exceed
$50,000,000 at any time;
(3) Indebtedness (other than Indebtedness described in clauses (1) and
(2)) in a principal amount which, when taken together with the principal
amount of all other Indebtedness Incurred pursuant to this clause (3) and
then outstanding, will not exceed $20 million (it being understood that any
Indebtedness Incurred under this clause (3) shall cease to be deemed
Incurred or outstanding for purposes of this clause (3) (but shall be
deemed to be Incurred for purposes of paragraph (a))) from and after the
first date on which the Company or its Restricted Subsidiaries could have
Incurred such Indebtedness under the foregoing clause (1) without reliance
upon this clause (3);
(4) Indebtedness owed to and held by a Wholly Owned Subsidiary;
provided, however, that any subsequent issuance or transfer of any Capital
Stock which results in any such Wholly Owned Subsidiary ceasing to be a
wholly Owned Subsidiary or any subsequent transfer of such Indebtedness
(other than to another Wholly Owned Subsidiary) shall be deemed, in each
case, to constitute the Incurrence of such Indebtedness by the Company;
(5) the Notes;
(6) Indebtedness in respect of bid, performance or surety bonds issued
or other reimbursement obligations for the account of the Company or any
Restricted Subsidiary in the ordinary course of business, including letters
of credit supporting such bid, performance, surety bonds or other
reimbursement obligations (in each case other than an obligation for money
borrowed);
(7) Indebtedness outstanding on the Issue Date (other than
Indebtedness described in clause (1), (4), (5) or (6) of this covenant);
(8) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to paragraph (a) or pursuant to clause (5) or (7) or this clause
(8); and
(9) Hedging Obligations consisting of (x) Interest Rate Agreements
directly related to Indebtedness permitted to be Incurred by the Company
pursuant to the Indenture and (y) Commodity Hedging Agreements and Currency
Agreements entered into for the purpose of hedging fluctuations in
commodity prices or currency rates, respectively, and not for speculation.
(c) Notwithstanding the foregoing paragraph (a), any Restricted Subsidiary
may Incur, directly or indirectly:
(1) Indebtedness or Preferred Stock issued to and held by the Company
or a Wholly Owned Subsidiary; provided, however, that any subsequent
issuance or transfer of any Capital Stock which results in any such Wholly
Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or any subsequent
transfer of such Indebtedness or Preferred Stock (other than to the Company
or a Wholly Owned Subsidiary) shall be deemed, in each case, to constitute
the issuance of such Indebtedness or Preferred Stock by the issuer thereof;
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(2) Indebtedness or Preferred Stock of a Subsidiary Incurred and
outstanding on or prior to the date on which such Subsidiary was acquired
by the Company (other than Indebtedness or Preferred Stock Incurred in
connection with, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related
transactions pursuant to which such Subsidiary became a Subsidiary or was
acquired by the Company); provided, however, that on the date of such
acquisition and after giving effect thereto, the Company would have been
able to Incur at least $1.00 of additional Indebtedness pursuant to
paragraph (a) or (b) above;
(3) Indebtedness or Preferred Stock outstanding on the Issue Date
(other than Indebtedness described in clause (1) or (2) of this paragraph);
and
(4) Refinancing Indebtedness Incurred in respect of Indebtedness or
Preferred Stock referred to in clause (2) or (3) of this paragraph or this
clause (4); provided, however, that to the extent such Refinancing
Indebtedness directly or indirectly Refinances Indebtedness or Preferred
Stock of a Subsidiary described in clause (2), such Refinancing
Indebtedness shall be Incurred only by such Subsidiary.
(d) Notwithstanding the foregoing paragraph (a) Thai Romo or any Restricted
Subsidiary that owns an interest in any field or area but is not the operator of
such hydrocarbon interest may incur Indebtedness consisting of obligations to
reimburse the operator under the Operating Agreement or similar agreement in the
case of such other Restricted Subsidiaries or the Joint Operating Agreement for
Thai Romo's or such other Restricted Subsidiary's pro rata share of payments
made by such operator in respect of Indebtedness incurred by such operator in
connection with transactions under such agreements.
(e) Notwithstanding the foregoing, neither the Company nor any Restricted
Subsidiary shall Incur any Indebtedness under paragraph (b) above if the
proceeds thereof are used, directly or indirectly, to Refinance any Subordinated
Obligations of the Company unless such Indebtedness shall be subordinated to the
Notes to at least the same extent as such Subordinated Obligations. No
Subsidiary Guarantor shall Incur any Indebtedness under paragraph (b) above if
the proceeds thereof are used, directly or indirectly, to Refinance any
Subsidiary Guarantor Subordinated Obligation of such Subsidiary Guarantor unless
such Indebtedness shall be subordinated to the obligations of such Subsidiary
Guarantor under the Subsidiary Guaranty to at least the same extent as such
Subsidiary Guarantor Subordinated Obligation.
(f) In addition, the Company shall not Incur any Secured Indebtedness which
is not Senior Indebtedness unless contemporaneously therewith effective
provision is made to secure the Notes equally and ratably with such Secured
Indebtedness for so long as such Secured Indebtedness is secured by a Lien;
provided that the Company may grant a lien on a specified account or investments
which contain or consist solely of a portion of the proceeds received in
connection with the issuance of Indebtedness (and investment earnings thereon)
if the amounts on deposit in such account or such investments are to be used
solely to make payments of principal or interest on such Indebtedness. No
Subsidiary Guarantor shall Incur any Secured Indebtedness which is not
Subsidiary Guarantor Senior Indebtedness unless contemporaneously therewith
effective provision is made to secure such Subsidiary Guarantor's obligations
under the Subsidiary Guaranty equally and ratably with such Secured Indebtedness
for so long as such Secured Indebtedness is secured by a Lien.
(g) For purposes of determining compliance with the foregoing covenant, (i)
in the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness described above, the Company, in its sole discretion,
will classify such item of Indebtedness and only be required to include the
amount and type of such Indebtedness in one of the above clauses and (ii) an
item of Indebtedness may be divided and classified in more than one of the types
of Indebtedness described above.
Limitation on Layering. The Company shall not Incur any Indebtedness if
such Indebtedness is subordinate or junior in ranking in any respect to any
Senior Indebtedness unless such Indebtedness is Senior Subordinated Indebtedness
or is contractually subordinated in right of payment to Senior Subor-
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dinated Indebtedness. No Subsidiary Guarantor shall Incur any Indebtedness if
such Indebtedness is contractually subordinate or junior in ranking in any
respect to any Guarantor Senior Indebtedness of such Subsidiary Guarantor unless
such Indebtedness is Subsidiary Guarantor Senior Subordinated Indebtedness of
such Subsidiary Guarantor or is contractually subordinated in right of payment
to Subsidiary Guarantor Senior Subordinated Indebtedness of such Subsidiary
Guarantor.
Limitation on Restricted Payments. (a) The Company shall not, and shall not
permit any Restricted Subsidiary, directly or indirectly, to make a Restricted
Payment if at the time the Company or such Restricted Subsidiary makes such
Restricted Payment: (1) a Default shall have occurred and be continuing (or
would result therefrom); (2) the Company is not able to Incur an additional
$1.00 of Indebtedness pursuant to paragraph (a) of the covenant described under
"-- Limitation on Indebtedness"; or (3) the aggregate amount of such Restricted
Payment and all other Restricted Payments since the Issue Date would exceed the
sum of:
(A) 50% of the Consolidated Net Income accrued during the period
(treated as one accounting period) from the beginning of the fiscal quarter
immediately following the fiscal quarter during which the Notes are
originally issued to the end of the most recent fiscal quarter ending prior
to the date of such Restricted Payment for which financial statements are
available (or, in case such Consolidated Net Income shall be a deficit,
minus 100% of such deficit);
(B) the aggregate Net Cash Proceeds received by the Company from the
issuance or sale of its Capital Stock (other than Disqualified Stock)
subsequent to the Issue Date (other than an issuance or sale to a
Subsidiary of the Company and other than an issuance or sale to an employee
stock ownership plan or to a trust established by the Company or any of its
Subsidiaries for the benefit of their employees);
(C) the amount by which Indebtedness of the Company is reduced on the
Company's balance sheet upon the conversion or exchange (other than by a
Subsidiary of the Company) subsequent to the Issue Date of any Indebtedness
of the Company convertible or exchangeable for Capital Stock (other than
Disqualified Stock) of the Company (less the amount of any cash, or the
fair value of any other property, distributed by the Company upon such
conversion or exchange);
(D) an amount equal to the sum of (i) the net reduction in Investments
in Unrestricted Subsidiaries resulting from dividends, repayments of loans
or advances or other transfers of assets, in each case to the Company or
any Restricted Subsidiary from Unrestricted Subsidiaries, and (ii) the
portion (proportionate to the Company's equity interest in such Subsidiary)
of the fair market value of the net assets of an Unrestricted Subsidiary at
the time such Unrestricted Subsidiary is designated a Restricted
Subsidiary; provided, however, that the foregoing sum shall not exceed, in
the case of any Unrestricted Subsidiary, the amount of Investments
previously made (and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary; and
(E) $15,000,000.
(b) The provisions of the foregoing paragraph (a) shall not prohibit:
(i) any Restricted Payment out of the proceeds of the substantially
concurrent sale of, or any acquisition of any Capital Stock of the
Company made by exchange for, Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary of the Company or an employee stock ownership plan or to a
trust established by the Company or any of its Subsidiaries for the
benefit of their employees); provided, however, that (A) such Restricted
Payment shall be excluded in the calculation of the amount of Restricted
Payments and (B) the Net Cash Proceeds from such sale shall be excluded
from the calculation of amounts under clause (3)(B) of paragraph (a)
above;
(ii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations made by
exchange for, or out of the proceeds of the
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substantially concurrent sale of, Capital Stock of the Company or
Indebtedness of the Company which is permitted to be Incurred pursuant
to the covenant described under "-- Limitation on Indebtedness";
provided, however, that such purchase, repurchase, redemption,
defeasance or other acquisition or retirement for value shall be
excluded in the calculation of the amount of Restricted Payments;
(iii) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with this covenant; provided, however, that at the time of payment of
such dividend, no other Default shall have occurred and be continuing
(or result therefrom); provided further, however, that such dividend
shall be included in the calculation of the amount of Restricted
Payments; or
(iv) the repurchase or other acquisition of shares of, or options
to purchase shares of, common stock of the Company or any of its
Subsidiaries from employees, former employees, directors or former
directors of the Company or any of its Subsidiaries (or permitted
transferees of such employees, former employees, directors or former
directors), pursuant to the terms of the agreements (including
employment agreements) or plans (or amendments thereto) approved by the
Board of Directors under which such individuals purchase or sell or are
granted the option to purchase or sell, shares of such common stock;
provided, however, that the aggregate amount of such repurchases and
other acquisitions shall not exceed $1 million in any calendar year;
provided further, however, that such repurchases and other acquisitions
shall be excluded in the calculation of the amount of Restricted
Payments.
If the Company or any Restricted Subsidiary makes a Restricted Payment
which, at the time of the making of such Restricted Payment, would in the good
faith determination of the Company be permitted under the requirements of the
Indenture, such Restricted Payment shall be deemed to have been made in
compliance with the Indenture notwithstanding any subsequent adjustments made in
good faith to the Company's financial statements affecting Consolidated Net
Income for any period.
Limitation on Restrictions on Distributions from Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary to, create
or otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary to (a)
pay dividends or make any other distributions on its Capital Stock to the
Company or a Restricted Subsidiary or pay any Indebtedness owed to the Company,
(b) make any loans or advances to the Company or (c) transfer any of its
property or assets to the Company, except:
(i) any encumbrance or restriction pursuant to an agreement in effect
at or entered into on the Issue Date, including the Revolving Credit
Facility;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness incurred
by such Restricted Subsidiary on or prior to the date on which such
Restricted Subsidiary was acquired by the Company (other than Indebtedness
Incurred as consideration in, or to provide all or any portion of the funds
or credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Company) and outstanding on
such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an agreement
referred to in clause (i) or (ii) of this covenant or this clause (iii) or
contained in any amendment to an agreement referred to in clause (i) or
(ii) of this covenant or this clause (iii); provided, however, that the
encumbrances and restrictions with respect to such Restricted Subsidiary
contained in any such refinancing agreement or amendment are no less
favorable to the Holders than encumbrances and restrictions with respect to
such Restricted Subsidiary contained in such predecessor agreements;
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(iv) any such encumbrance or restriction consisting of customary non
assignment provisions in leases governing leasehold interests to the extent
such provisions restrict the transfer of the lease or the property leased
thereunder;
(v) in the case of clause (c) above, restrictions contained in
security agreement or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent such restrictions restrict the transfer of the
property subject to such security agreements or mortgages;
(vi) any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all or
substantially all the Capital Stock or assets of such Restricted Subsidiary
pending the closing of such sale or disposition; and
(vii) encumbrances or restrictions arising or existing by reason of
applicable law.
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly,
consummate any Asset Disposition unless (i) the Company or such Restricted
Subsidiary receives consideration at the time of such Asset Disposition at least
equal to the fair market value (including as to the value of all non-cash
consideration), as determined in good faith by the Board of Directors, of the
shares and assets subject to such Asset Disposition, (ii) at least 80% of the
consideration thereof received by the Company or such Restricted Subsidiary is
in the form of cash, cash equivalents or forgiveness of debt and (iii) an amount
equal to 100% of the Net Available Cash from such Asset Disposition is applied
by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to
the extent the Company elects (or is required by the terms of any Indebtedness),
to prepay, repay, redeem or purchase Senior Indebtedness or Indebtedness (other
than any Disqualified Stock) of a Wholly Owned Subsidiary (in each case other
than Indebtedness owed to the Company or an Affiliate of the Company) within one
year from the later of the date of such Asset Disposition or the receipt of such
Net Available Cash; (B) second, to the extent of the balance of such Net
Available Cash after application in accordance with clause (A), to the extent
the Company elects, to acquire Additional Assets within one year from the later
of the date of such Asset Disposition or the receipt of such Net Available Cash;
and (C) third, to the extent of the balance of such Net Available Cash after
application in accordance with clauses (A) and (B), to make an offer to the
holders of the Notes (and to holders of other Senior Subordinated Indebtedness
designated by the Company to purchase Notes (and such other Senior Subordinated
Indebtedness) pursuant to and subject to the conditions in the Indenture, in
each case within one year from the later of the receipt of such Net Available
Cash and the date the offer described in clause (b) below is consummated;
provided, however, that in connection with any prepayment, repayment or purchase
of Indebtedness pursuant to clause (A) or (C) above, the Company or such
Restricted Subsidiary shall permanently retire such Indebtedness and shall cause
the related loan commitment (if any) to be permanently reduced in an amount
equal to the principal amount so prepaid, repaid or purchased except in the case
of clause (A) to the extent the proceeds are applied to reduce borrowings under
a working capital facility. Notwithstanding the foregoing provisions of this
paragraph, the Company and the Restricted Subsidiaries shall not be required to
apply any Net Available Cash in accordance with this paragraph except to the
extent that the aggregate Net Available Cash from all Asset Dispositions which
are not applied in accordance with this paragraph exceeds $10 million (provided
such amount shall be carried forward for purposes of determining whether such an
offer is required with respect to Net Available Cash from any subsequent Asset
Disposition). Pending application of Net Available Cash pursuant to this
covenant, such Net Available Cash shall be invested in Permitted Investments.
For the purposes of this covenant, the following will be deemed to be cash
or cash equivalents: (x) the assumption by the transferee of Senior Indebtedness
of the Company or Indebtedness of any Restricted Subsidiary of the Company and
the release of the Company or such Restricted Subsidiary from all liability on
such Senior Indebtedness or Indebtedness in connection with such Asset
Disposition (in which case the Company shall, without further action, be deemed
to have applied such assumed Indebtedness in accordance with clause (A) of the
preceding paragraph) and (y) securities received by
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the Company or any Restricted Subsidiary of the Company from the transferee that
are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of the
Notes (and other Senior Subordinated Indebtedness) pursuant to clause
(a)(iii)(C) above, the Company will be required to purchase Notes tendered
pursuant to an offer by the Company for the Notes (and other Senior Subordinated
Indebtedness) at a purchase price of 100% of their principal (without premium)
plus accrued but unpaid interest (or, in respect of such other Senior
Subordinated Indebtedness, such lesser price, if any, as may be provided for by
the terms of such Senior Subordinated Indebtedness) in the procedures (including
prorating in the event of oversubscription) set forth in the Indenture.
(c) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
covenant. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this clause by virtue thereof.
Limitation on Affiliate Transactions. (a) The Company shall not, and shall
not permit any Restricted Subsidiary to, on or after the date hereof directly or
indirectly enter into or permit to exist any transaction or series of related
transactions (including the purchase, sale, lease or exchange of any property,
or the rendering of any service) with any Affiliate of the Company (an
"Affiliate Transaction") unless terms thereof (1) are no less favorable to the
Company or such Restricted Subsidiary than those that could be obtained at the
time of such transaction in arm's-length dealings with a Person who is not such
an Affiliate or in the event no comparable transaction with an unrelated third
party who is not an Affiliate is available, on terms that are fair to the
Company or such Restricted Subsidiary from a financial point of view, (2) if
such Affiliate Transaction involves an amount in excess of $1 million, (i) are
set forth in writing and (ii) have been approved by a majority of the members of
the Board of Directors having no personal stake in such Affiliate Transaction
and (3) if such Affiliate Transaction involves an amount in excess of $5
million, have been determined by a nationally recognized investment banking firm
to be fair, from a financial standpoint, to the Company and its Restricted
Subsidiaries.
(b) The provisions of the foregoing paragraph (a) shall not prohibit (i)
any Restricted Payment permitted to be paid pursuant to the covenant described
under "-- Limitation on Restricted Payments," (ii) any issuance of securities,
or other payments, awards or grants in cash, securities or otherwise pursuant
to, or the funding of, employment arrangements, stock options and stock
ownership plans approved by the Board of Directors, (iii) the grant of stock
option or similar rights to employees and directors of the Company pursuant to
plans approved by the Board of Directors, (iv) loans or advances to employees in
the ordinary course of business in accordance with customary practices in the
Oil and Gas Business, but in any event not to exceed $1 million in the aggregate
outstanding at any one time, (v) the payment of reasonable fees to directors of
the Company and its Restricted Subsidiaries who are not employees of the Company
or its Restricted Subsidiaries, (vi) any Affiliate Transaction between the
Company and a Wholly Owned Subsidiary or between Wholly Owned Subsidiaries,
(vii) the issuance or sale of any Capital Stock (other than Disqualified Stock)
of the Company, (viii) indemnification agreements with, and the payment of fees
and indemnities to, director, officers and employees of the Company and its
Restricted Subsidiaries, in each case on customary terms, (ix) transactions
pursuant to agreements as in existence on the Issue Date and (x) any employment,
noncompetition or confidentiality agreements entered into by the Company or any
of its Restricted Subsidiaries with its employees in the ordinary course of
business.
Limitation on the Sale or Issuance of Capital Stock of Restricted
Subsidiaries. The Company shall not sell or otherwise dispose of any Capital
Stock of a Restricted Subsidiary, and shall not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell or otherwise dispose of any
of its Capital Stock except (i) to the Company or a Wholly Owned Subsidiary and
(ii) if, immediately after giving effect to such issuance, sale or other
disposition, neither the Company nor any of its Subsidiaries own any
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Capital Stock of such Restricted Subsidiary or after giving effect to such
issuance, sale or other disposition, such Restricted Subsidiary would no longer
constitute a Restricted Subsidiary and any Investment in such Person remaining
after giving effect thereto would have been permitted to be made under the
covenant described under the covenant described under "-- Limitation on
Restricted Payments" if made on the date of such issuance, sale or other
disposition.
Merger and Consolidation. The Company shall not consolidate with or merge
with or into, or convey, transfer or lease, in one transaction or a series of
transactions, all or substantially all its assets to, any Person, unless: (i)
the resulting, surviving or transferee Person (the "Successor Company") shall be
a Person organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia and the Successor Company (if not
the Company) shall expressly assume, by an indenture supplemental thereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Notes and the Indenture; (ii)
immediately after giving effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Company or any
Subsidiary as a result of such transaction as having been Incurred by such
Successor Company or such Subsidiary at the time of such transaction), no
Default shall have occurred and be continuing, (iii) immediately after giving
effect to such transaction, the Successor Company would be able to Incur an
additional $1.00 of Indebtedness pursuant to paragraph (a) of the covenant
described under "-- Limitation on Indebtedness," (iv) immediately after giving
effect to such transaction, the Successor Company shall have Consolidated Net
Worth in an amount that is not less than the Consolidated Net Worth of the
Company immediately prior to such transaction; and (v) the Company shall have
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel each
stating that such consolidate, merger or transfer and such supplemental
indenture (if any) comply with the Indenture.
The Successor Company shall be the successor to the Company and shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under the Indenture, but the predecessor Company in the case of a
conveyance, transfer or lease shall not be released from the obligation to pay
the principal of and interest on the Notes.
Notwithstanding the foregoing clauses (ii) and (iii), (1) any Restricted
Subsidiary of the Company may consolidate with, merge into or transfer all or
part of its properties and assets to the Company and (2) the Company may merge
with an Affiliate incorporated solely for the purpose of reincorporating the
Company in another jurisdiction to realize tax or other benefits.
Commission Reports. The Company will file with the Trustee and provide to
the holders of the Notes, within 15 days after it files them with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) which the Company files with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act. In the event
that the Company is not required to file such reports with the Commission
pursuant to the Exchange Act, the Company will nevertheless deliver such
Exchange Act Information to the Holders of the Notes within 15 days after it
would have been required to file it with the Commission.
Restrictions with Respect to B8/32 Partners. Neither the Company nor any of
its Restricted Subsidiaries will vote any shares or other equity interests in
B8/32 Partners owned or controlled by it in favor of, or otherwise consent to,
any action by or on behalf of B8/32 Partners which action would not be permitted
to be undertaken by a Restricted Subsidiary pursuant to the terms of the
Indenture.
Future Guarantors. The Company shall cause each Restricted Subsidiary
(including each Restricted Subsidiary created or acquired following the Issue
Date) to Guarantee the Notes pursuant to a Subsidiary Guaranty on the terms and
conditions set forth in the Indenture.
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Defaults
An Event of Default is defined in the Indenture as (i) a default in the
payment of interest on the Notes when due, continued for 30 days whether or not
such payment is prohibited by the provisions described under "Ranking and
Subordination" above, (ii) a default in the payment of principal of any Note
when due at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration or otherwise, (iii) the failure by the Company to
comply with its obligations under "-- Certain Covenants -- Merger and
Consolidation" above, (iv) the failure by the Company to comply for 30 days
after notice with any of its obligations in the covenants described above under
"Change of Control" (other than a failure to purchase Notes) or under
"-- Certain Covenants" under "-- Limitation on Indebtedness," "-- Limitation on
Restricted Payment," "-- Limitation on Restrictions on Distributions from
Restricted Subsidiaries," "-- Limitation on Sales of Assets and Subsidiary
Stock" (other than a failure to purchase Notes), "-- Limitation on Affiliate
Transactions," "-- Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries" or "-- Commission Reports," (v) the failure by the
Company to comply for 60 days after notice with its other agreements contained
in the Indenture, (vi) Indebtedness of the Company or any Significant Subsidiary
is not paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total amount of
such Indebtedness unpaid or accelerated exceeds $10 million (the "cross
acceleration provision"), (vii) certain events of bankruptcy, insolvency or
reorganization of the Company or a Significant Subsidiary (the "bankruptcy
provisions"), (viii) any judgment or decree for the payment of money in excess
of $10 million is entered against the Company or a Significant Subsidiary,
remains outstanding for a period of 60 days following such judgment and is not
discharged, waived or stayed within 10 days after notice (the "judgment default
provision"), (ix) any Subsidiary Guaranty by a Significant Subsidiary ceases to
be in full force and effect (except as contemplated by the terms of the
Indenture) or any Subsidiary Guarantor that is a Significant Subsidiary denies
or disaffirms its obligations under the Indenture or its Subsidiary Guaranty,
and such default continues for 10 days or (x) the Indenture shall cease to be in
full force and effect or enforceable in accordance with its terms other than in
accordance with its terms. However, a default under clauses (iv), (v) and (viii)
will not constitute an Event of Default until the Trustee or the holders of 25%
in principal amount of the outstanding Notes notify the Company of the default
and the Company does not cure such default within the time specified after
receipt of such notice.
If an Event of Default occurs and is continuing, the Trustee or the holders
of at least 25% in principal amount of the outstanding Notes may declare the
principal of and accrued but unpaid interest on all the Notes to be due and
payable. Upon such a declaration, such principal and interest shall be due and
payable immediately. If an Event of Default relating to certain events of
bankruptcy, insolvency or reorganization of the company occurs and is
continuing, the principal of and interest on all the Notes will ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any holders of the Notes. Under certain
circumstances, the holders of a majority in principal amount of the outstanding
Notes may rescind any such acceleration with respect to the Notes and its
consequences. Subject to the provisions of the Indenture relating to the duties
of the Trustee, in case an Event of Default occurs and is continuing, the
Trustee will be under no obligation to exercise any of the rights or powers
under the Indenture at the request or direction of any of the holders of the
Notes unless such holders have offered to the Trustee reasonable indemnity or
security against any loss, liability or expense. Except to enforce the right to
receive payment of principal, premium (if any) or interest when due, no holder
of a Note may pursue any remedy with respect to the Indenture or the Notes
unless (i) such holder has previously given the Trustee notice that an Event of
Default is continuing, (ii) holders of at least 25% in principal amount of the
outstanding Notes have requested the Trustee to pursue the remedy, (iii) such
holders have offered the Trustee reasonable security or indemnity against any
loss, liability or expense, (iv) the Trustee has not complied with such request
within 60 days after the receipt thereof and the offer of security or indemnity
and (v) the holders of a majority in principal amount of the outstanding Notes
have not given the Trustee a direction inconsistent with such request within
such 60-day period. Subject to certain restrictions, the holders of a majority
in principal amount of the outstanding Notes are given the right to direct the
time, method and place of
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conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
the Trustee determines is unduly prejudicial to the rights of any other holder
of a Note or that would involve the Trustee in personal liability.
The Indenture provides that if a Default occurs and is continuing and is
known to the Trustee, the Trustee must mail to each holder of the Notes notice
of the Default within 90 days after it occurs. Except in the case of a Default
in the payment of principal of or interest on any Note, the Trustee may withhold
notice if and so long as a committee of its trust officers determines that
withholding notice is not opposed to the interest of the holders of the Notes.
In addition, the Company is required to deliver to the Trustee, within 120 days
after the end of each fiscal year, a certificate indicating whether the signers
thereof know of any Default that occurred during the previous year. The Company
also is required to deliver to the Trustee, within 30 days after the occurrence
thereof, written notice of any event which would constitute certain Defaults,
their status and what action the Company is taking or proposes to take in
respect thereof.
Amendments and Waivers
Subject to certain exceptions, the Indenture may be amended with the
consent of the holders of a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange for the Notes) and any past default or compliance with any provisions
may also be waived with the consent of the holders of a majority in principal
amount of the Notes then outstanding. However, without the consent of each
holder of an outstanding Note affected thereby, no amendment may, among other
things, (i) reduce the amount of Notes whose holders must consent to an
amendment, (ii) reduce the rate of or extend the time for payment of interest on
any Note, (iii) reduce the principal of or extend the Stated Maturity of any
Note, (iv) reduce the premium payable upon the redemption of any Note or change
the time at which any Note may be redeemed as described under "-- Optional
Redemption" above, (v) make any Note payable in money other than that stated in
the Note, (vi) impair the right of any holder of the Notes to receive payment of
principal of an interest on such holder's Notes on or after the due dates
therefor or to institute suit for the enforcement of any payment on or with
respect to such holder's Notes, (vii) make any change in the amendment
provisions which require each holder's consent or in the waiver provisions,
(viii) modify or amend any provision of the Indenture relating to Subsidiary
Guarantors in a manner adverse to the Holders or (ix) release any of the Pledged
Securities from the Lien of the Indenture.
Without the consent of any holder of the Notes, the Company and Trustee may
amend the Indenture to cure any ambiguity, omission, defect or inconsistency, to
provide for the assumption by a successor corporation of the obligations of the
Company under the Indenture, to provide for uncertificated Notes in addition to
or in place of certificated Notes (provided that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code, or in a
manner such that the uncertificated Notes are described in Section 163(f)(2)(B)
of the Code), to add further Guarantees with respect to the Notes, to further
secure the Notes, to add to the covenants of the Company for the benefit of the
holders of the Notes or to surrender any right or power conferred upon the
Company, to make any change that does not adversely affect the rights of any
holder of the Notes or to comply with any requirement of the Commission in
connection with the qualification of the Indenture under the Trust Indenture
Act. However, no amendment may be made to the subordination provisions of the
Indenture that adversely affects the rights of any holder of Senior Indebtedness
then outstanding unless the holders of such Senior Indebtedness (or their
Representative) consent to such change.
The consent of the holders of the Notes is not necessary under the
Indenture to approve the particular form of any proposed amendment. It is
sufficient if such consent approves the substance of the proposed amendment.
After an amendment under the Indenture becomes effective, the Company is
required to mail to holders of the Notes a notice briefly describing such
amendment. However, the failure to give such
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notes to all holders of the Notes, or any defect therein, will not impair or
affect the validity of the amendment.
Transfer
The Notes will be issued in registered form and will be transferable only
upon the surrender of the Notes being transferred for registration of transfer.
The Company may require payment of a sum sufficient to cover any tax, assessment
or other governmental charge payable in connection with certain transfer and
exchanges.
Defeasance
The Company at any time may terminate all its obligations under the Notes
and the Indenture ("legal defeasance"), except for certain obligations,
including those respecting the defeasance trust and obligations to register the
transfer or exchange of the Notes, to replace mutilated, destroyed, lost or
stolen Notes and to maintain a registrar and paying agent in respect of the
Notes. The Company at any time may terminate its obligations under "-- Change of
Control" and under the covenants described under "-- Certain Covenants" (other
than the covenant described under "-- Merger and Consolidation"), the operation
of the cross acceleration provision, the bankruptcy provisions with respect to
Significant Subsidiaries and the judgment default provision described under
"-- Defaults" above and the limitations contained in clauses (iii) and (iv)
under "-- Certain Covenants -- Merger and Consolidation" above ("covenant
defeasance").
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option, payment of the Notes may not be accelerated because of
an Event of Default with respect thereto. If the Company exercises its covenant
defeasance option, payment of the Notes may not be accelerated because of an
Event of Default specified in clause (iv), (vi), (vii) (with respect only to
Significant Subsidiaries) or (viii) under "-- Defaults" above or because of the
failure of the Company to comply with clause (iii) or (iv) under "-- Certain
Covenants -- Merger and Consolidation" above. If the Company exercises its legal
defeasance option or its covenant defeasance option, each Subsidiary Guarantor
will be released from its obligations under its Subsidiary Guaranty.
In order to exercise either defeasance option, the Company must irrevocably
deposit in trust (the "defeasance trust") with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on the Notes to
redemption or maturity, as the case may be, and must comply with certain other
conditions, including delivery to the Trustee of an Opinion of Counsel to the
effect that holders of the Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance and will
be subject to Federal income tax on the same amounts and in the same manner and
at the same times as would have been the case if such deposit and defeasance had
not occurred (and, in the case of legal defeasance only, such Opinion of Counsel
must be based on a ruling of the Internal Revenue Service or other change in
applicable Federal income tax law).
Concerning the Trustee
Bank of Montreal Trust Company is the Trustee under the Indenture and has
been appointed by the Company as Registrar and paying agent with regard to the
Notes. The Bank of Montreal, an affiliate of the Trustee, is a lender under the
Revolving Credit Facility. Such bank may also act as a depository of funds for,
or make loans to and perform other services for, the Company in the ordinary
course of business in the future.
The Holders of a majority in principal amount of the outstanding Notes will
have the right to direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee, subject to certain
exceptions. The Indenture provides that if an Event of Default occurs (and is
not cured), the Trustee will be required, in the exercise of its power, to use
the degree of care of a prudent man in the conduct of his own affairs. Subject
to such provisions, the Trustee will be under no
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obligation to exercise any of its rights or powers under the Indenture at the
request of any Holder of Notes, unless such Holder shall have offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or
expense and then only to the extent required by the terms of the Indenture.
Governing Law
The Indenture provides that it and the Notes will be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to applicable principles of conflicts of law to the extent that the
application of the law of another jurisdiction would be required thereby.
BOOK-ENTRY, DELIVERY AND FORM
General
The New Notes will be issued in the form of one or more fully registered
Notes in global form (the "New Global Note," and together with the global notes
representing the "Old Notes," the "Global Notes"). Upon issuance of the Global
Notes, DTC or its nominee will credit, on its book-entry registration and
transfer system, the number of Notes represented by such Global Notes to the
accounts of institutions that have accounts with DTC or its nominee
("participants"). Ownership of beneficial interests in the Global Notes will be
limited to participants or persons that may hold interests through participants.
Ownership of beneficial interest in such Global Notes will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
DTC or its nominee (with respect to participants' interests) for such Global
Notes, or by participants or persons that hold interests through participants
(with respect to beneficial interests of persons other than participants). The
laws of some jurisdictions may require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such limits and
laws may impair the ability to transfer or pledge beneficial interests in the
Global Notes.
So long as DTC, or its nominee, is the registered holder of any Global
Notes, DTC or such nominee, as the case may be, will be considered the sole
legal owner and holder of such Notes represented by such Global Notes for all
purposes under the Indenture and the Notes. Except as set forth below, owners of
beneficial interests in Global Notes will not be entitled to have such Global
Notes or any Notes represented thereby registered in their names, will not
receive or be entitled to receive physical delivery or certificated Notes in
exchange therefor and will not be considered to be the owners or holders of such
Global Notes or any Notes represented thereby for any purpose under the Notes or
the Indenture. The Company and the Subsidiary Guarantors understand that under
existing industry practice, in the event an owner of a beneficial interest in a
Global Note desires to take any action that DTC, as the holder of such Global
Note, is entitled to take, DTC would authorize the participants to take such
action, and that the participants would authorize beneficial owners owning
through such participants to take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Any payment of principal or interest due on the Notes on any interest
payment date or at maturity will be made available by the Company to the Trustee
by such date. As soon as possible thereafter, the Trustee will make such
payments to DTC or its nominee, as the case may be, as the registered owner of
the Global Notes representing such Notes in accordance with existing
arrangements between the Trustee and the depositary.
The Company and the Subsidiary Guarantors expect that DTC or its nominee,
upon receipt of any payment of principal or interest in respect of the Global
Notes will credit immediately the accounts of the related participants with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Notes as shown on the records of DTC. The
Company and the Subsidiary Guarantors also expect that payments by participants
to owners of beneficial interests in the Global Notes held through such
participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers in bearer
form or registered in "street name," and will be the responsibility of such
participants.
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None of the Company, the Subsidiary Guarantors, the Trustee, or any payment
agent for the Global Notes will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in any of the Global Notes or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests or for
other aspects of the relationship between the depositary and its participants or
the relationship between such participants and the owners of beneficial
interests in the Global Notes owning through such participants.
Because of time zone differences, the securities account of a Euroclear
System ("Euroclear") or Cedel Bank, Societe anonyme ("Cedel") participant
purchasing an interest in a Global Note from a DTC participant will be credited,
and any such crediting will be reported to the relevant Euroclear or Cedel
participant, during the securities settlement processing day (which must be a
business day for Euroclear or Cedel, as applicable) immediately following the
DTC settlement date. Cash received in Euroclear or Cedel as a result of sales of
interests in a Global Note by or through a Euroclear or Cedel participant to a
DTC participant will be received with value on the DTC settlement date but will
be available in the relevant Euroclear or Cedel cash account only as of the
business day following settlement in DTC.
As long as the Notes are represented by a Global Note, DTC's nominee will
be the holder of such Notes and therefore will be the only entity that can
exercise a right to repayment or repurchase of such Notes. See "Description of
the Notes -- Change of Control" and "-- Certain Covenants -- Limitation on Sales
of Assets and Subsidiary Stock." Notice by participants or by owners of
beneficial interests in a Global Note held through such participants of the
exercise of the option to elect repayment of beneficial interests in Notes
represented by a Global Note must be transmitted to DTC in accordance with its
procedures on a form required by DTC and provided to participants. In order to
ensure that DTC's nominee will timely exercise a right to repayment with respect
to a particular Note, the beneficial owner of such Note must instruct the broker
or other participant to exercise a right to repayment. Different firms have
cut-off times for accepting instructions from their customers and, accordingly,
each beneficial owner should consult the broker or other participant through
which it holds an interest in a Note in order to ascertain the cut-off time by
which such an instruction must be given in order for timely notice to be
delivered to DTC. Neither the Company nor any Subsidiary Guarantor will be
liable for any delay in delivery of notices of the exercise of the option to
elect repayment.
Unless and until exchanged in whole or in part for Notes in definitive form
in accordance with the terms of the Notes, the Global Notes may not be
transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another nominee of DTC or by DTC of any such nominee to a successor of
DTC or a nominee of each successor.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Notes among participants of DTC, it is
under no obligation to perform or continue to perform such procedures, and such
procedures may be discontinued at any time. None of the Trustee, the Company, or
the Subsidiary Guarantors will have any responsibility for the performance by
DTC or its participants or indirect participants of their respective obligations
under the rules and procedures governing their operations. The Company, the
Subsidiary Guarantors and the Trustee may conclusively rely on, and shall be
protected in relying on, instructions from DTC for all purposes.
CERTIFICATED NOTES
Global Notes shall be exchangeable for corresponding Notes in certificated
fully registered form ("Certificated Notes") registered in the name of persons
other than DTC or its nominee only if (A) DTC (i) notifies the Company that it
is unwilling or unable to continue as depositary for any of the Global Notes or
(ii) at any time ceases to be a clearing agency registered under the Exchange
Act, (B) there shall have occurred and be continuing an Event of Default (as
defined in the Indenture) with respect to the applicable Notes or (C) the
Company executes and delivers to the Trustee, an order that the Global Notes
shall be so exchangeable. Any Certificated Notes will be issued only in fully
registered form, and shall be issued without coupons in denominations of $1,000
and integral multiples thereof. Any Certifi
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cated Notes so issued will be registered in such names and in such denominations
as DTC shall request.
THE CLEARING SYSTEM
DTC has advised the Company and the Subsidiary Guarantors as follows: DTC
is a limited-purpose trust company organized under the laws of the State of New
York, a member of the Federal Reserve System, a "clearing corporation" within
the meaning of the New York Uniform Commercial Code, and "a clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
was created to hold securities of institutions that have accounts with its
participants and to facilitate the clearance and settlement of securities
transactions among its participants in such securities through electronic
book-entry changes in accounts of participants, thereby eliminating the need for
physical movement of securities certificates. DTC's participants include
securities brokers and dealers (which may include the Initial Purchasers),
banks, trust companies, clearing corporations and certain other organizations.
Access to DTC's book-entry system is also available to others such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a participant, whether directly or indirectly.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a summary of certain federal income tax
considerations relevant to the exchange of the Old Notes for the New Notes by
holders acquiring the Notes on original issue for cash, but does not purport to
be a complete analysis of all potential tax effects. The discussion is based
upon the Internal Revenue Code of 1986, as amended (the "Code"), Treasury
Regulations, Internal Revenue Service ("IRS") rulings, and pronouncements and
judicial or administrative actions. Any such change may be applied retroactively
in a manner that could adversely affect a holder of the Notes.
In the opinion of Hughes & Luce, L.L.P., based on the assumptions and
subject to the qualifications set forth below, the following discussion
accurately describes the material federal income tax consequences of the
purchase, ownership, and disposition of the Notes by holders who acquire the New
Notes on original issue as "capital assets" within the meaning of section 1221
of the Code. The following discussion is based on the assumption that the
treatment of the Notes as indebtedness for federal income tax purposes will be
respected. The discussion is not binding on the IRS or the courts. The Company
has not sought and will not seek any rulings from the IRS with respect to the
positions of the Company discussed below. There can be no assurance that the IRS
will not take a different position concerning the tax consequences of the
purchase, ownership, or disposition of the Notes or that any such position would
not be sustained.
The tax treatment of a holder of a Note may vary depending on its
particular situation or status. Certain holders including S corporations,
insurance companies, tax-exempt organizations, financial institutions,
broker-dealers, taxpayers subject to alternative minimum tax and persons who are
not (i) citizens or residents of the United States, (ii) corporations,
partnerships or other entities created or organized under the laws of the United
States or of any political subdivision thereof or (iii) estates or trusts the
income of which is subject to United States federal income taxation regardless
of its source, may be subject to special rules not discussed below. In addition,
the description does not consider the effect of any applicable foreign, state,
local, or other tax laws or estate or gift tax considerations.
EXCHANGE
The exchange of the New Notes for Old Notes should not constitute a
recognition event for federal income tax purposes. Consequently, no gain or loss
should be recognized by holders upon receipt of the New Notes. For purposes of
determining gain or loss upon the subsequent exchange of New Notes, a holder's
basis in the New Notes will be the same as a holder's basis in the Old Notes
exchanged therefor. Holders should be considered to have held the New Notes from
the time of their original acquisition of the Old Notes.
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PAYMENTS OF INTEREST
Interest on a Note generally will be taxable to a holder as ordinary
interest income at the time it accrues or is received in accordance with the
holder's method of accounting for federal income tax purposes. Such interest
will be foreign source income provided the Company derives more than a certain
percentage of its gross income from foreign sources, which the Company expects
to be the case.
DISPOSITION OF NOTES
Upon the sale, retirement (including redemption), or other taxable
disposition of all or part of a Note, a holder will recognize gain or loss equal
to the difference between the amount realized on such sale, retirement, or other
disposition and the holder's adjusted tax basis in the Note or part of the Note.
Any gain recognized will be U.S. source income if the holder is a U.S. resident
and any loss recognized may be foreign source loss if interest is treated as
foreign source income. Any recognized gain or loss will be capital gain or loss,
except to the extent of any accrued market discount (see "-- Market Discount"
below), and such capital gain or loss will be long-term if the holding period
for the Note is more than one year at the time of sale, retirement or other
disposition. For these purposes, the amount realized does not include any amount
received for accrued interest on a Note that is taxable as interest to the Note
holder when the interest payment is received. A holder's adjusted tax basis in a
Note acquired by purchase will equal the cost of such Note to the holder,
increased by the amount of any accrued interest and market discount included in
taxable income by the holder with respect to such Note and reduced by any
amortized section 171 premium (see "Amortizable Bond Premium" below) and any
prior payments on the Note received by the holder. The redemption of only part
of a Note will require the allocation of the entire Note's adjusted tax basis
between the redeemed part and the part retained by the holder in order to
determine gain or loss.
MARKET DISCOUNT
A secondary market purchaser of a Note at a discount from the principal
amount acquires such Note with a "market discount." However, the market discount
will be considered to be zero if such market discount is minimal under section
1278(a)(2)(C) of the Code. Market discount will be minimal with respect to a
Note if it is less than the product of (A) 1/4 of 1% of the stated redemption
price of the Note at maturity multiplied by (B) the number of complete years to
maturity after the date of purchase. Under section 1276 of the Code, the
purchaser of a Note with more than a minimal amount of market discount generally
will be required to treat any gain on the sale, exchange, redemption, or other
disposition of all or part of the Note as ordinary income to the extent of
accrued (but not previously taxable) market discount. Market discount generally
will accrue ratably during the period from the date of purchase to the maturity
date of the Note, unless the holder irrevocably elects pursuant to section
1276(b)(2) of the Code to accrue such market discount on the basis of a constant
interest rate.
Under section 1277 of the Code, a holder who has acquired a Note at a
market discount generally will be required to defer any interest deductions
attributable to any indebtedness incurred or continued to purchase or carry the
Note, to the extent such deductions exceed an allocable portion of market
discount. Any such deferred interest expense generally will be allowable as a
deduction not later than the year in which the related market discount income is
recognized. As an alternative to the inclusion of market discount in income upon
disposition of a Note, a holder may pursuant to section 1278(b) of the Code make
an election (which may be revoked only with the IRS's consent) to include market
discount in income as it accrues on all market discount instruments acquired by
the holder during or after the taxable year for which the election is made. In
that case, the preceding deferral rule for interest expense will not apply.
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AMORTIZABLE BOND PREMIUM
A secondary market purchaser of a Note at a premium (the "Section 171
Premium") over the stated principal amount of the Note (plus accrued interest)
generally may elect to amortize such premium from the purchase date to the
maturity date, under a constant yield method that reflects semiannual
compounding. Except as may be otherwise provided in Treasury Regulations yet to
be issued, amortized Section 171 Premium will be treated as an offset to
interest income on a Note and not as a separate deduction. This interest offset
would be available only if an election under section 171 of the Code is made or
is in effect. This election would apply to all debt instruments held or
subsequently acquired by the electing holder on or after the first day of the
first taxable year to which the election applies and may not be revoked without
the consent of the IRS.
Section 171 Premium on a Note that is subject to optional redemption before
maturity at a price exceeding the Note's principal amount generally must be
amortized as if the optional redemption price and the last redemption date at
that price were the Notes principal amount and maturity date, if doing so would
decrease the amount of premium amortizable through the redemption date. In cases
where the premium must be amortized on the basis of an optional redemption price
and date, the Note (if not redeemed) will be treated as maturing on the last
redemption date for that redemption price and having been reissued on that date
for that price.
BACKUP WITHHOLDING
The backup withholding rules require a payor to deduct and withhold a tax
if (a) the payee fails to furnish a taxpayer identification ("TIN") to the
payor, (b) the IRS notifies that payor that the TIN furnished by the payee is
incorrect, (c) the payee has failed to properly report the receipt of
"reportable payments" and the IRS has notified the payor that withholding is
required, or (d) there has been a failure of the payee to certify under the
penalty of perjury that a payee is not subject to withholding under section 3406
of the Code. As a result, if any one of the events discussed above occurs, the
Company, its paying agent or other withholding agent will be required to
withhold a tax equal to 31% of any "reportable payment" made in connection with
the Notes. A "reportable payment" includes, among other things, interest
actually paid and amounts paid through brokers in retirement of securities. Any
amounts withheld from payment to a holder under the backup withholding rules
will be allowed as a refund or credit against such holder's federal income tax,
provided that the required information is furnished to the IRS. Certain holders
(including, among others, corporations and certain tax exempt organizations) are
not subject to the backup withholding and information reporting requirements.
THE FOREGOING DISCUSSION OF CERTAIN FEDERAL INCOME TAX CONSIDERATIONS DOES
NOT CONSIDER THE FACTS AND CIRCUMSTANCES OF ANY PARTICULAR PROSPECTIVE
PURCHASER'S SITUATION OR STATUS. THE SUMMARY IS BASED ON THE PROVISIONS OF THE
CODE, REGULATIONS, RULINGS, AND JUDICIAL DECISIONS NOW IN EFFECT, ALL OF WHICH
ARE SUBJECT TO CHANGE, POSSIBLY ON A RETROACTIVE BASIS. EACH PURCHASER OF NOTES
SHOULD CONSULT HIS OWN TAX ADVISOR WITH RESPECT TO THE TAX CONSEQUENCES TO IT,
INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN, AND OTHER TAX LAWS,
OF THE PURCHASE, OWNERSHIP, AND DISPOSITION OF THE NOTES.
NOTICE TO CANADIAN RESIDENTS
RESALE RESTRICTIONS
The distribution of the Notes in Canada is being made only on a private
placement basis exempt from the requirement that the Company prepare and file a
prospectus with the securities' regulatory authorities in each province where
trades of Notes are effected. Accordingly, any resale of the Notes in Canada
must be made in accordance with applicable securities laws which will vary
depending on the relevant jurisdiction, and which may require resales to be made
in accordance with available statutory
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exemptions or pursuant to a discretionary exemption granted by the applicable
Canadian securities regulatory authority. Purchasers are advised to seek legal
advice prior to any resale of the Notes.
REPRESENTATIONS OF PURCHASERS
Each purchaser of Notes in Canada who receives a purchase confirmation will
be deemed to represent to the Company and the dealer from whom such purchase
confirmation is received that (i) such purchaser is entitled under applicable
provincial securities laws to purchase such Notes without the benefit of a
prospectus qualified under such securities laws, (ii) where required by law,
that such purchaser is purchasing as principal and not as agent, and (iii) such
purchaser has reviewed the text above under "Resale Restrictions".
RIGHTS OF ACTION (ONTARIO PURCHASERS)
The securities being offered are those of a foreign issuer and Ontario
purchasers will not receive the contractual right of action prescribed by
section 32 of the Regulation under the Securities Act (Ontario). As a result,
Ontario purchasers must rely on other remedies that may be available, including
common law rights of action for damages or rescission or rights of action under
the civil liability provisions of the U.S. federal securities laws.
ENFORCEMENT OF LEGAL RIGHTS
All of the Company's directors and officers as well as the experts named
herein may be located outside of Canada and, as a result, it may not be possible
for Canadian purchasers to effect service of process within Canada upon the
Company or such persons. All or a substantial portion of the assets of the
Company, each Subsidiary Guarantor and such persons may be located outside of
Canada, and as a result, it may not be possible to satisfy a judgment against
the Company, any Subsidiary Guarantor or such persons in Canada or to enforce a
judgment obtained in Canadian courts against the Company, any Subsidiary
Guarantor or persons outside of Canada.
NOTICE TO BRITISH COLUMBIA RESIDENTS
A purchaser of the Notes to whom the Securities Act (British Columbia)
applies is advised that such purchaser is required to file with the British
Columbia Securities Commission a report within ten days of the sale of any of
the Notes acquired by such purchaser pursuant to this offering. Such report must
be in the form attached to British Columbia Securities Commission Blanket Order
BOR #95/17, a copy of which may be obtained from the Company. Only one such
report must be filed in respect of the Notes acquired on the same date and under
the same prospectus exemption.
TAXATION AND ELIGIBILITY FOR INVESTMENT
Canadian purchasers of the Notes should consult their own legal and tax
advisors with respect to the tax consequence of an investment in the Notes in
their particular circumstances and with respect to the eligibility of the Notes
for investment by the purchaser under relevant Canadian legislation.
LEGAL MATTERS
The validity of the New Notes has been passed upon for the Company by
Hughes & Luce, L.L.P., Dallas, Texas.
EXPERTS
The consolidated balance sheet of Rutherford-Moran Oil Corporation as of
December 31, 1996, and the related consolidated statements of operations,
changes in stockholders' equity and cash flows for the periods June 18, 1996
through December 31, 1996, and September 21, 1990 (date of inception)
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through December 31, 1996, and the consolidated balance sheet of the Company's
predecessors as of December 31, 1995, and the related predecessors' consolidated
statements of operations, changes in partners' equity and cash flows for the
period January 1, 1996 through June 17, 1996 and for the years ended December
31, 1995 and 1994, have been included herein and in the Registration Statement
in reliance upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, appearing elsewhere herein, and upon the authority of said
firm as experts in accounting and auditing.
The estimates of proven oil and natural gas reserves and related future net
revenues and the present value thereof as of July 1, 1997 included in this
Prospectus have been derived from the reserve report of Ryder Scott Company,
independent petroleum engineers. All of such information has been so included
herein in reliance upon the authority of such firm as experts in such matters.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This Prospectus includes certain statements that may constitute
"forward-looking" information (as defined in the Private Securities Litigation
Reform Act of 1995). Words such as "anticipate", "estimate", "project" and
similar expressions are intended to identify such forward-looking statements.
Forward-looking statements may be included in this Prospectus in, among other
places, under "Prospectus Summary", "Risk Factors", "Use of Proceeds", "Business
and Properties" and "Management's Discussion and Analysis of Financial Condition
and Results of Operations". Such forward-looking statements may include, but are
not limited to, statements concerning estimates of current and future results of
operations, earnings, reserves, the timing and commencement of wells and the
production therefrom, production estimates based upon drill stem tests and other
test data, future capacity under its credit arrangements, and future capital
expenditures and liquidity requirements.
Such forward-looking statements are subject to certain risks, uncertainties
and assumptions, including without limitation those discussed under "Risk
Factors" and those identified below. Should one or more of these risks or
uncertainties materialize, or should any of the underlying assumptions prove
incorrect, actual results of current and future operations may vary materially
from those anticipated, estimated or projected. Prospective investors are
cautioned not to place undue reliance on these forward-looking statements, which
speak only as of their dates. The Company assumes no obligation to update any
such forward-looking statements.
Among the factors that have a direct bearing on the Company's results of
operations and the oil and gas exploration industry in which it operates are:
uncertainties inherent in estimating reserves and future cash flows; changes in
the price of oil and natural gas; the ability of the Company to develop its oil
and gas reserves; the availability of capital resources; the reliance upon
estimates of proved reserves; the limited production and exploration histories
in Block B8/32; the status of the Company's existing and future contractual
relationships with the Government of Thailand, including the Concession
agreement, and the GSA; risks associated with having the Government of Thailand
as the sole purchaser of the Company's gas production, including, political
instability and economic downturns in the Thailand economy and a reduction in
demand for oil and natural gas in Thailand; foreign currency fluctuation risks;
the presence of competitors with greater financial resources and capacity;
difficulties, and risks associated with, delivering the Company's production,
including inherent risks associated with offshore oil and gas exploration and
development operations and risks associated with offshore marine operations such
as capsizing, sinking, grounding, collision and damage from severe weather
conditions; the Company's successful execution of internal operating plans; and
regulatory uncertainties in Thailand.
99
<PAGE> 103
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of the New Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of New Notes received in exchange for Old Notes acquired
as a result of market-making activities or other trading activities. The Company
has agreed that it will make this Prospectus and any amendment or supplement to
this Prospectus available to any broker-dealer for use in connection with any
such resale for a period of 90 days after the Expiration Date or until all
participating broker-dealers have so resold.
The Company will not receive any proceeds from any sale of New Notes by
broker-dealers. New Notes received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the New Notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concession from any such
broker-dealer and/or the purchasers of any New Notes. Any broker-dealer that
resells New Notes that were received by it for its own account pursuant to the
Exchange Offer and any broker-dealer that participates in a distribution of New
Notes may be deemed to be an "underwriter" within the meaning of the Securities
Act, and any profit on any resale of New Notes and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Notes) other than commissions or concessions of any brokers or
dealers and will indemnify the Holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
The Company has not entered into any arrangement or understanding with any
person to distribute the New Notes to be received in the Exchange Offer, and to
the best of the Company's information and belief, each person participating in
the Exchange Offer is acquiring the New Notes in its ordinary course of business
and has no arrangement or understanding with any person to participate in the
distribution of the New Notes to be received in the Exchange Offer.
100
<PAGE> 104
CERTAIN DEFINITIONS
The following are abbreviations and definitions of terms commonly used in
the oil and gas industry and this Prospectus. Unless otherwise indicated in this
Prospectus, natural gas volumes are stated at the legal pressure base of the
state or area in which the reserves are located and at 60 Fahrenheit.
"Appraisal well" means a well that is designed to delineate the extent of
hydrocarbon accumulations and to define locations for platforms.
"Bbl" means one stock tank barrel, or 42 US gallons liquid volume.
"Bcf" means billion cubic feet.
"Bcfe" means Bcf equivalent.
"Btu" means the standard measure of the heating value of natural gas.
"Development well" means a well that is drilled to exploit the hydrocarbon
accumulation defined by an appraisal well.
"Dry well" or "dry hole" means an exploratory, a development or appraisal
well found to be incapable of producing either oil or gas in sufficient
quantities to justify completion as an oil and gas well.
"Exploration well" means a well that is designed to initially test the
validity of a seismic interpretation and to confirm the presence of
hydrocarbons.
"Gross acre" means an acre in which an interest is owned.
"Mbbl" means thousand barrels.
"Mbpd" means thousand barrels per day.
"Mcf" means thousand cubic feet.
"Mcfe" means Mcf equivalent crude oil and condensate are converted to Mcfes
using the ratio of six Mcf of natural gas to one Bbl of crude oil or condensate.
"MMbbl" means million barrels.
"MMbtu" means million Btus.
"MMcf" means million cubic feet.
"MMcfd" means million cubic feet per day.
"MMcfe" means MMcf equivalents.
"Net" oil and gas wells are obtained by multiplying "gross" oil and gas
wells by the Company's working interest in the applicable properties.
"Net acres" means the sum of the fractional working interests owned in
gross acres.
"Net pay" means the thickness of a hydrocarbon bearing zone after being
corrected for the angle of the penetrating wellbore and the structural dip of
the zone itself.
"Present Value of Proved Reserves" means the present value (discounted at
10%) of estimated future net cash flows (before income taxes) of proven oil and
natural gas reserves.
101
<PAGE> 105
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Independent Auditors' Report................................ F-2
Consolidated Statements of Operations, for the periods June
18, 1996 through December 31, 1996 (Company), and January
1, 1996 through June 17, 1996 and for the years ended
December 31, 1995 and 1994 (Predecessors) and Inception to
December 31, 1996......................................... F-3
Consolidated Balance Sheets, December 31, 1996 (Company),
and 1995 (Predecessors)................................... F-4
Consolidated Statements of Changes in Stockholders' and
Predecessors' Equity, for the periods June 18, 1996
through December 31, 1996 (Company), and January 1, 1996
through June 17, 1996 and for the years ended December 31,
1995 and 1994 and Inception to December 31, 1993
(Predecessors)............................................ F-5
Consolidated Statements of Cash Flows, for the periods June
18, 1996 through December 31, 1996 (Company), and January
1, 1996 through June 17, 1996 and for the years ended
December 31, 1995 and 1994 (Predecessors) and Inception to
December 31, 1996......................................... F-6
Notes to Consolidated Financial Statements.................. F-7
Condensed Consolidated Balance Sheets as of September 30,
1997 (Unaudited) and December 31, 1996.................... F-18
Unaudited Condensed Consolidated Statements of Operations
for the nine months ended September 30, 1997 and the
period June 18, 1996 through September 30, 1996 (Company)
and the period January 1, 1996 through June 17, 1996
(Predecessors)............................................ F-19
Unaudited Condensed Consolidated Statements of Cash Flows
for the nine months ended September 30, 1997 and the
period June 18, 1996 through September 30, 1996 (Company)
and the period January 1, 1996 through June 17, 1996
(Predecessors)............................................ F-20
Notes to Unaudited Condensed Consolidated Financial
Statements................................................ F-21
</TABLE>
F-1
<PAGE> 106
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Rutherford-Moran Oil Corporation
We have audited the accompanying consolidated balance sheet of Rutherford-Moran
Oil Corporation as of December 31, 1996 and the related consolidated statements
of operations, changes in stockholders' equity and cash flows for the periods
June 18, 1996 through December 31, 1996 and September 21, 1990 (date of
inception) through December 31, 1996, and the consolidated balance sheet of the
Company's Predecessors as of December 31, 1995 and the related Predecessors'
consolidated statements of operations, changes in partners' equity and cash
flows for the period January 1, 1996 through June 17, 1996 and for the years
ended December 31, 1995 and 1994. These consolidated financial statements are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of
Rutherford-Moran Oil Corporation and its Predecessors as of December 31, 1996
and 1995, respectively, and the results of its operations and its cash flows and
those of its Predecessors for the periods June 18, 1996 through December 31,
1996 and January 1, 1996 through June 17, 1996, for the years ended December 31,
1995 and 1994, and the period September 21, 1990 (date of inception) through
December 31, 1996, respectively, in conformity with generally accepted
accounting principles.
KPMG Peat Marwick LLP
March 25, 1997
Houston, Texas
F-2
<PAGE> 107
RUTHERFORD-MORAN OIL CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
SEPTEMBER 21,
JUNE 18, JANUARY 1, 1990 (DATE OF
THROUGH THROUGH YEAR ENDED DECEMBER 31, INCEPTION) TO
DECEMBER 31, JUNE 17, ------------------------------- DECEMBER 31,
1996 1996 1995 1994 1996
------------ -------------- -------------- -------------- ---------------
(COMPANY) (PREDECESSORS) (PREDECESSORS) (PREDECESSORS)
<S> <C> <C> <C> <C> <C>
Interest Income................ $ 170 $ -- $ 5 $ 6 $ 337
Expenses:
Interest expense............. 411 395 190 107 1,362
Depreciation expense......... 25 4 5 2 37
Salaries and wages........... 427 108 114 109 882
General and administrative... 1,553 180 208 181 2,403
------- ------- ------- ------- -------
Total expenses............... 2,416 687 517 399 4,684
------- ------- ------- ------- -------
Loss before taxes..... (2,246) (687) (512) (393) (4,347)
Income tax expense (benefit)... (530) 1,921 -- -- 1,391
------- ------- ------- ------- -------
Net loss....................... $(1,716) $(2,608) $ (512) $ (393) $(5,738)
======= ======= ======= ======= =======
Net loss per common share...... $ (0.07) $ (0.12) $ (0.02) $ (0.02) $ (0.27)
======= ======= ======= ======= =======
Weighted average number of
common shares outstanding.... 25,514 21,000 21,000 21,000 21,384
======= ======= ======= ======= =======
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE> 108
RUTHERFORD-MORAN OIL CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT FOR SHARE INFORMATION)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------
1996 1995
--------- --------------
(COMPANY) (PREDECESSORS)
<S> <C> <C>
Current assets:
Cash and cash equivalents................................. $ 444 $ 9,831
Value added tax refund receivable......................... 2,806 631
Joint interest receivables................................ 150 1,002
Prepaid expenses and other................................ 17 35
-------- -------
Total current assets.............................. 3,417 11,499
Property and equipment, at cost:
Oil and gas (full cost method)............................ 123,300 55,951
Office furniture and fixtures............................. 197 58
Accumulated depreciation, depletion and amortization...... (37) (7)
-------- -------
123,460 56,002
Other assets:
Loan acquisition costs.................................... 2,089 399
Accumulated amortization.................................. (541) (231)
-------- -------
Loan acquisition costs, net of amortization............ 1,548 168
Deferred costs............................................ 1,400 --
-------- -------
Total assets...................................... $129,825 $67,669
======== =======
LIABILITIES & STOCKHOLDERS' AND PREDECESSORS' EQUITY
Current liabilities:
Accounts payable and accrued liabilities.................. $ 852 $ 370
Loans from stockholders................................... -- 8,490
Note payable to bank...................................... -- 34,385
Joint interest payable.................................... 2,715 977
Accrued interest on loans from stockholders............... -- 178
-------- -------
Total current liabilities......................... 3,567 44,400
Note payable to bank........................................ 22,842 --
Deferred taxes.............................................. 1,391 --
Premium on written option................................... 1,400 --
Stockholders' and Predecessors' equity:
Predecessors' equity...................................... -- 24,450
Preferred stock, $0.01 par value, 10,000,000 shares
authorized, no shares issued and outstanding........... -- --
Common stock, $0.01 par value, 40,000,000 shares
authorized, 25,607,000 shares issued and outstanding at
December 31, 1996...................................... 256 --
Additional paid-in capital................................ 103,143 --
Deficit accumulated during the development stage.......... (1,716) (1,181)
Deferred compensation..................................... (1,058) --
-------- -------
Total stockholders' and predecessors' equity...... 100,625 23,269
-------- -------
Commitments and contingencies............................... -- --
-------- -------
Total liabilities and stockholders' and
predecessors' equity........................... $129,825 $67,669
======== =======
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE> 109
RUTHERFORD-MORAN OIL CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' AND PREDECESSORS' EQUITY
(IN THOUSANDS, EXCEPT FOR SHARE INFORMATION)
<TABLE>
<CAPTION>
DEFICIT TOTAL
COMMON STOCK ACCUMULATED STOCKHOLDERS'
-------------------- ADDITIONAL DURING THE AND
PREDECESSORS' SHARES PAID-IN DEVELOPMENT UNEARNED PREDECESSORS'
EQUITY OUTSTANDING AMOUNT CAPITAL STAGE COMPENSATION EQUITY
------------- ----------- ------ ---------- ----------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at September 21, 1990
(Date of Inception)........... $ -- -- $ -- $ -- $ -- $ -- $ --
Capital contributions........... 11,294 -- -- -- -- -- 11,294
Capital distributions........... (2,205) -- -- -- -- -- (2,205)
Net loss........................ (58) -- -- -- (451) -- (509)
-------- ---------- ---- -------- ------- ------- --------
Balance at December 31, 1993.... 9,031 -- -- -- (451) -- 8,580
Capital contributions........... 7,296 -- -- -- -- -- 7,296
Net loss........................ (44) -- -- -- (348) -- (392)
-------- ---------- ---- -------- ------- ------- --------
Balance at December 31, 1994.... 16,283 -- -- -- (799) -- 15,484
Capital contributions........... 8,297 -- -- -- -- -- 8,297
Net loss........................ (130) -- -- -- (382) -- (512)
-------- ---------- ---- -------- ------- ------- --------
Balance at December 31, 1995.... 24,450 -- -- -- (1,181) -- 23,269
Net loss from January 1, 1996 to
June 17, 1996................. -- -- -- -- (2,608) -- (2,608)
Transfer of interests and
issuance of common stock in
initial public offering....... (24,450) 24,955,662 250 104,620 3,789 -- 84,209
Redemption of Rutherford-Moran
Exploration Company stock by
majority shareholders......... -- -- -- (12,360) -- -- (12,360)
Exercise of call option on Thai
Romo Limited stock............ -- -- -- (3,130) -- -- (3,130)
Issuance of common stock for
initial public offering over-
allotment..................... -- 600,000 6 12,828 -- -- 12,834
Grant of restricted stock
awards........................ -- 51,338 -- 1,185 -- (1,185) --
Amortization of restricted stock
awards........................ -- -- -- -- -- 127 127
Net loss from June 18, 1996 to
December 31, 1996............. -- -- -- -- (1,716) -- (1,716)
-------- ---------- ---- -------- ------- ------- --------
Balance at December 31, 1996.... $ -- 25,607,000 $256 $103,143 $(1,716) $(1,058) $100,625
======== ========== ==== ======== ======= ======= ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE> 110
RUTHERFORD-MORAN OIL CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
SEPTEMBER 21,
JUNE 18, JANUARY 1, YEAR ENDED 1990 (DATE OF
THROUGH THROUGH ------------------------------- INCEPTION) TO
DECEMBER 31, JUNE 17, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1996 1996 1995 1994 1996
------------- -------------- -------------- -------------- -------------
(COMPANY) (PREDECESSORS) (PREDECESSORS) (PREDECESSORS)
<S> <C> <C> <C> <C> <C>
Cash flows from operating activities:
Net loss..................................... $ (1,716) $ (2,608) $ (512) $ (393) $ (5,737)
Adjustments to reconcile net loss to cash
provided by (used in) operating activities:
Depreciation and amortization.............. 25 4 5 2 37
Amortization of deferred financing costs... 141 -- -- -- 141
Amortization of unearned compensation...... 127 -- -- -- 127
Deferred income taxes...................... (530) 1,921 -- -- 1,391
Changes in assets and liabilities:
Accounts receivable...................... (764) (559) (1,628) (5) (2,956)
Accounts payable......................... (4,116) 6,336 479 198 3,745
Other current assets and liabilities..... 13 (172) (25) 2 (195)
-------- -------- -------- ------- ---------
Cash provided by (used in) operating
activities........................... (6,820) 4,922 (1,681) (196) (3,447)
-------- -------- -------- ------- ---------
Cash flows from investing activities:
Investment in oil and gas properties......... (36,804) (30,377) (36,776) (8,159) (122,901)
Other capital expenditures................... (101) (38) (12) (19) (197)
-------- -------- -------- ------- ---------
Cash used in investing activities...... (36,905) (30,415) (36,788) (8,178) (123,098)
-------- -------- -------- ------- ---------
Cash flows financing activities:
Deferred financing costs..................... (1,689) -- -- -- (1,689)
Exercise of call option on Thai Romo Limited
stock...................................... (3,130) -- -- -- (3,130)
Capital contributions........................ -- -- 7,898 7,296 26,488
Proceeds from initial public offering........ 97,043 -- -- -- 97,043
Redemption of Rutherford-Moran Exploration
Company stock by majority stockholders..... (12,360) -- -- -- (12,360)
Proceeds from loans from stockholders........ -- 15,654 6,993 -- 24,994
Payments on loans from stockholders.......... (24,144) -- -- -- (24,994)
Capital distributions........................ -- -- -- -- (2,205)
Borrowings under bank notes.................. 22,842 29,164 32,985 1,400 86,391
Repayments of bank notes..................... (49,664) (13,885) -- -- (63,549)
-------- -------- -------- ------- ---------
Cash provided by financing
activities........................... 28,898 30,933 47,876 8,696 126,989
-------- -------- -------- ------- ---------
Net increase (decrease) in cash and
cash equivalents..................... (14,827) 5,440 9,407 322 444
Cash and cash equivalents, beginning of
period....................................... 15,271 9,831 424 102 --
-------- -------- -------- ------- ---------
Cash and cash equivalents, end of period....... $ 444 $ 15,271 $ 9,831 $ 424 $ 444
======== ======== ======== ======= =========
Supplemental disclosures of cash flow
information:
Cash paid during the period for interest..... $ 1,139 $ 767 $ 211 $ 220 $ 1,279
======== ======== ======== ======= =========
Cash paid during the period for income tax... $ -- $ -- $ -- $ -- $ --
======== ======== ======== ======= =========
Supplemental disclosure of noncash investing
and financing activities:
Issuance of partnership interest in Thai Romo
Limited for loan acquisition costs......... $ -- $ -- $ 400 $ -- $ 400
======== ======== ======== ======= =========
Capitalization of amortized loan acquisition
costs...................................... $ -- $ 168 $ 231 $ -- $ 399
======== ======== ======== ======= =========
Interests in Thai Romo Limited and
Rutherford-Moran Exploration Company
contributed for common
stock...................................... $ -- $ 24,450 $ -- $ -- $ 24,450
======== ======== ======== ======= =========
Predecessor retained earnings reclassified to
additional paid-in capital................. $ 3,789 $ -- $ -- $ -- $ 3,789
======== ======== ======== ======= =========
Premium deferred and premium on written
option..................................... $ 843 $ 557 $ -- $ -- $ 1,400
======== ======== ======== ======= =========
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE> 111
RUTHERFORD-MORAN OIL CORPORATION
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 ORGANIZATION
The accompanying consolidated financial statements of Rutherford-Moran Oil
Corporation ("RMOC" or "Company"), a Delaware corporation, have been prepared
pursuant to the rules and regulation of the Securities and Exchange Commission
("SEC").
The Company is an independent energy company engaged in the acquisition,
exploration, development and production of oil and gas properties in Southeast
Asia. As of December 31, 1996, the Company's exploration activities are entirely
in the Gulf of Thailand and are conducted through its subsidiary, Thai Romo,
Limited ("Thai Romo").
The financial statements reflect all adjustments that, in the opinion of
management, are necessary for a fair presentation.
NOTE 2 SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION
In April 1996, Rutherford/Moran Oil Corporation changed its name to
Rutherford-Moran Exploration Company ("RMEC"). RMEC was formed on September 21,
1990 (date of inception), for the purpose of holding an interest in an oil and
gas concession in Thailand through its subsidiary, Thai Romo, which was
organized as a foreign corporation under the laws of the Kingdom of Thailand.
Thai Romo was formed as a wholly owned subsidiary of RMEC. Thai Romo is one of
the concessionaires under the Petroleum Concession No. 1/2534/36 (the
"Concession") awarded by the Ministry of Industry of the Kingdom of Thailand for
the development and production of oil and gas reserves in offshore Block B8/32
in the central portion of the Gulf of Thailand. The Concession was awarded on
August 1, 1991, to Thai Romo, Thaipo, a wholly owned subsidiary of Pogo
Producing Company, and Maersk Oil (Thailand), Limited ("MOTL"), a wholly-owned
subsidiary of Maersk Olie og Gas As. Subsequent to the award, the Sophonpanich
Co., Limited ("Sophonpanich") elected to participate in the Concession as a
co-venturer. Thaipo has been the operator of the Tantawan Field within the
Concession, and until March 1997 the remainder of the Concession was operated by
Maersk Oil (Thailand) Ltd. Subsequent to March 1997, Thaipo operated the
remainder of the concession, as the shares of Maersk Oil (Thailand) Limited were
sold to the concessionaires. Effective June 17, 1996, the stockholders of RMEC
and the partners of Thai Romo exchanged their interests for shares of common
stock of a newly formed entity, RMOC. RMOC is the parent company of RMEC and
Thai Romo Holdings, Inc. RMEC and Thai Romo Holdings, Inc. collectively own the
outstanding shares of Thai Romo. During June 1996, RMOC sold 16% of its common
stock in an initial public offering (the "Offering") in conjunction with the
consummation of the exchange of RMEC common stock and Thai Romo interests for
common stock of RMOC. In conjunction with the Offering, RMEC redeemed for $12.4
million approximately 56,000 shares of its common stock from Patrick R.
Rutherford and John A. Moran, majority stockholders of RMEC (the "Redemption"),
exercised RMEC's call option on 3% of the partners' interest in Thai Romo held
by Red Oak Holdings, Inc. for $3.1 million and repaid outstanding debt of $62
million owed stockholders and banks. On June 18, 1996, the stockholders' equity
accounts were adjusted to reflect the deficit accumulated during the development
stage to additional paid-in capital upon RMEC and Thai Romo becoming subject to
federal income taxes. During July 1996, an additional 2.4% of RMOC's common
stock was sold when the underwriters exercised their over-allotment option.
The consolidated financial statements for the period from June 18, 1996 to
December 31, 1996 include the accounts of RMOC and its wholly owned
subsidiaries, RMEC, Thai Romo and Thai Romo Holdings, Inc. All material
intercompany accounts and transactions have been eliminated in consolidation.
F-7
<PAGE> 112
The financial statements for each of the years in the two-year period ended
December 31, 1995, and the period from January 1, 1996 to June 17, 1996 include
the accounts of RMEC, Thai Romo and Thai Romo Holdings, Inc. (the
"Predecessors") (combined). All material intercompany accounts and transactions
have been eliminated in the combination. The combined financial statements are
presented due to the commonality of the stockholders and partners of RMEC and
Thai Romo.
The Company's planned principal operations have commenced, but revenue from
production did not begin until February 1997. As a result, the Company is
considered a development stage company.
CASH AND CASH EQUIVALENTS
The Company considers all currency and any liquid investments with a
maturity of three months or less to be cash equivalents.
OIL AND GAS PROPERTIES
The Company and its subsidiaries follow the full cost method of accounting
for its investment in oil and gas properties. Under this method of accounting,
all costs of acquisition, exploration and development of oil and gas reserves
(including such costs as leasehold acquisition costs, geological expenditures,
dry hole costs and tangible and intangible development costs and directly
associated internal costs) are capitalized into a "full cost pool" as incurred.
Oil and gas properties, the estimated future expenditures to develop proved
reserves, and estimated future abandonment, environmental and dismantlement
costs are depleted and charged to operations using the unit-of-production method
based on the ratio of current production to proved oil and gas reserves as
estimated by engineering consultants. The Concession, a major development
project, has had no production of reserves, and accordingly, no depreciation,
depletion, or amortization of oil and gas properties has been provided since
inception. Production began in February 1997 at which time depletion will begin.
Disposition of oil and gas properties are recorded as adjustments to capitalized
costs, with no gain or loss recognized unless such adjustments would
significantly alter the relationship between capitalized costs and proved
reserves of oil and gas. To the extent that capitalized costs of oil and gas
properties, net of accumulated depletion and amortization, exceed the
tax-effected discounted future net revenues of proved oil and gas reserves, such
excess capitalized costs would be charged to operations. No such write-down in
book value was required during the years ending December 31, 1994, 1995, and
1996.
OTHER PROPERTY AND EQUIPMENT
Other property consists primarily of furniture, office equipment, leasehold
improvements and computers. The majority of these assets are depreciated on a
straight-line basis with useful lives of seven years.
HEDGING
During the first quarter of 1996, the Company entered into crude oil price
swaps with an affiliate of one of its lenders. While the swaps serve as hedges
intended to reduce the Company's exposure to declines in the market price of
crude oil, they may limit the Company's gain from increases in the market price.
At December 31, 1996, the crude oil price swap agreements incorporated one
million barrels ("MMbbl") of oil volumes from April through December 1997 at a
weighted average price of $15.92 per Bbl and 1.75 MMbbl of oil volumes from
January through December 1998 at a weighted average price of $15.92 per Bbl. At
December 31, 1996, the Company estimates the cost of liquidating this position
to be approximately $8.5 million.
Also, the Company sold to an affiliate of one of its bank lenders an option
to purchase 1.25 MMbbl of aggregate oil volumes from January through December
1999 at a price of $18.30 per Bbl. The Company has accounted for the swap option
separately as it does not qualify as a hedge. At December 31, 1996, the Company
estimates the fair market value of this position to be $1.4 million and has
recorded the amount as a liability on the consolidated balance sheet.
F-8
<PAGE> 113
REVENUE RECOGNITION
The Company recognizes revenues at the time of transfer to the purchasers;
however, crude oil inventory is recorded at the cost of production and related
depletion upon transfer to the floating production, storage and offloading
vessel.
GEOGRAPHICAL CONCENTRATION
The Concession is located in the Gulf of Thailand. Consequently,
substantially all of Thai Romo's assets are subject to regulation by the
government of Thailand. Political changes, such as increases in tax rates or
nationalization of strategic or other assets by the government of Thailand,
could adversely affect the Company.
USE OF ESTIMATES
Management of the Company has made a number of estimates and assumptions
relating to the reporting of assets and liabilities, the reporting of quantities
of proved oil and gas reserves, and the disclosure of contingent assets and
liabilities to prepare these financial statements in conformity with generally
accepted accounting principles. Actual results could differ from those
estimates.
VALUE ADDED TAX REFUND RECEIVABLE
Expenditures on certain concession joint operations are assessed a value
added tax by the government of Thailand. Because the concession operators have
obtained an exemption from value added taxes, all value added taxes are
refundable. Accordingly, a refund due is recorded when value added taxes are
paid by the operator.
STOCK-BASED COMPENSATION
During 1996, the Company adopted Statement of Financial Accounting
Standards No. 123, Accounting for Stock-Based Compensation ("SFAS No. 123").
SFAS No. 123 allows a company to adopt a fair value based method of accounting
for a stock-based employee compensation plan or to continue to use the intrinsic
value based method of accounting prescribed by Accounting Principles Board
Opinion No. 25, Accounting for Stock Issued to Employees ("APB No. 25"). The
Company has chosen to continue to account for stock-based compensation under APB
No. 25. Under this method, the Company has not recorded any compensation expense
related to stock options granted. The disclosures required by SFAS No. 123,
however, have been included in Note 8.
NOTE 3 INCOME TAXES
Deferred taxes are accounted for under the asset and liability method of
accounting for income taxes. Under this method deferred income taxes are
recognized for the tax consequences of "temporary differences" by applying
enacted statutory tax rates applicable to future years to differences between
the financial statement carrying amounts and the tax basis of existing assets
and liabilities. The effect on deferred taxes of a change in tax rates is
recognized in income in the period the change occurs.
The Predecessors were a limited partnership and an S Corporation under the
Internal Revenue Code of 1986, as amended. As such, they did not incur federal
income taxes; the taxable income or loss was passed through to the partners or
stockholders. As a result of the initial public offering in June 1996, the
Company became a taxable entity and recorded a one-time charge of $1,921,000,
representing the difference between the financial statement and income tax basis
of its foreign oil and gas properties. Income tax expense for the period June
18, 1996, through December 31, 1996, was a benefit of $530,000, which represents
a deferred foreign income tax benefit.
F-9
<PAGE> 114
Total income tax benefit for the period June 18, 1996, through December 31,
1996, differs from the amount computed by applying the Federal income tax rate
to the loss before income taxes. The reasons for this difference follows
(amounts in thousands):
<TABLE>
<S> <C>
Expected federal income tax benefit......................... $ 764
Foreign income tax rate difference.......................... 359
Nondeductible general and administrative costs for foreign
income tax purposes....................................... (388)
Nondeductible interest for foreign income tax purposes...... (205)
-----
$ 530
=====
</TABLE>
The tax effects of temporary differences related to property and equipment
resulted in the deferred income tax liability at December 31, 1996.
NOTE 4 ACQUISITIONS
On December 19, 1996, Rutherford-Moran Oil Corporation, through its wholly
owned subsidiary, Thai Romo, exercised its preferential right to purchase 46.34%
of the outstanding shares of Maersk Oil (Thailand), Limited ("MOTL"), a wholly
owned subsidiary of Maersk Olie og Gas As of Copenhagen, Denmark ("Maersk").
MOTL is a former co-concessionaire in Block B8/32 located offshore Thailand
owning a 31.67% interest. The purchase was consummated on March 3, 1997, with
Thai Romo Holdings, Inc., a wholly owned subsidiary of the Company and Thai
Romo's nominee under the Share Sales Agreement with Maersk, purchasing the
shares for $28,617,000, which included $1,554,000 in satisfaction of outstanding
debt. After the closing, MOTL is in the process of being renamed B8/32 Partners.
The purchase price was established in a Share Sale Agreement dated November
2, 1996, between Maersk and BG Egypt S.A. Pursuant to the Joint Operating
Agreement among the co-concessionaires, Thai Romo and the remaining
co-concessionaires jointly had a preferential right to purchase the stock of
MOTL on the terms and conditions agreed between Maersk and BG Egypt S.A.
The remaining 53.66% of MOTL's stock was purchased by Pogo Producing
Company, and by Palang Sophon Limited of Bangkok, Thailand. Thaipo Limited, a
subsidiary of Pogo Producing Company, and Palang Sophon Limited and MOTL were
co-concessionaires with Thai Romo Limited prior to the sale of MOTL. As a
result, RMOC's interest in the entire Block B8/32 has now effectively increased
from 31.67% to 46.34%.
The Company financed the purchase of MOTL by utilizing $20,000,000 from a
new credit facility entered into with The Chase Manhattan Bank ("Chase") which
term expires on June 30, 1997. The remainder of the payment was financed with
borrowings under the Company's existing revolving credit facility with Chase and
other lenders. The credit facility contains terms which are substantially
identical to those in the Company's Revolving Credit Facility. The Company
expects to repay the new credit facility with proceeds from the redetermined
borrowing base in its Revolving Credit Facility.
NOTE 5 DEBT
CREDIT FACILITY
On September 20, 1996, the Company entered into a $150,000,000 Revolving
Credit Facility with a group of commercial lenders. The Revolving Credit
Facility has a final maturity of September 30, 1999 and a borrowing base
limitation at December 31, 1996, of $60,000,000. The Revolving Credit Facility
is secured by the stock of certain subsidiaries of the Company.
Under the terms of the Revolving Credit Facility, outstanding borrowings
will bear interest at the Base Rate (defined as the greater of the Federal Funds
Rate plus .5% or the agent bank's prime rate) plus .25% or the Eurodollar Rate
(defined as an average of the London Interbank Offered Rate (LIBOR) of two
banks) plus 1.75%, at the Company's option. Interest is payable quarterly. The
Company is also
F-10
<PAGE> 115
assessed a commitment fee equal to .5% per annum on the average daily balance of
the unused borrowing base. The Revolving Credit Facility provides for
semi-annual borrowing base redeterminations as well as certain covenants,
including restrictions on additional indebtedness, payment of dividends and an
interest coverage ratio.
At December 31, 1996, $22,842,000 was outstanding under the Credit Facility
at interest rates ranging from 7.125% to 7.4375% per annum. Such facility is
payable in 1999.
NOTES PAYABLE
In November 1994, Thai Romo executed a Loan Facility Agreement with a
commercial lender under which Thai Romo could borrow up to $5,000,000 at any
time during the period from November 1994 to the final maturity date in April
1995. In December 1994, Thai Romo borrowed $1,400,000 under this Loan Facility
Agreement. The annual interest rate on amounts borrowed under the Loan Facility
Agreement was the LIBOR rate plus 4%. During July 1995, December 1995, and April
1996, Thai Romo amended the Loan Facility Agreement to allow it to borrow up to
$44,000,000 with a maturity date of June 28, 1996. At December 31, 1995 the
amount outstanding under the Loan Facility Agreement was $21,000,000.
In September 1995, RMEC obtained a Line of Credit from the same commercial
lender to borrow up to $5,000,000. This amount was increased in November 1995 to
$15,000,000 with a maturity date of June 28, 1996. The annual interest rates on
amounts borrowed under the Line of Credit ranged from prime plus 1/2% to prime
plus 1% and from LIBOR plus 2 1/4% to LIBOR plus 2 3/4%, at the Company's
option. At December 31, 1995, the amount outstanding under the Line of Credit
was $13,385,000.
All debt pertaining to the Loan Facility Agreement and the Line of Credit
was retired on June 28, 1996, with proceeds from the initial public offering.
LOANS FROM STOCKHOLDERS
RMEC had loans from stockholders at December 31, 1995 as follows (amounts
in thousands):
<TABLE>
<CAPTION>
PAYMENT INTEREST
STOCKHOLDER TERMS RATE 1995
----------- --------- -------- ------
<S> <C> <C> <C>
Patrick R. Rutherford................................ On demand Prime $4,254
John A. Moran........................................ On demand Prime 4,036
Sidney F. Jones, Jr.................................. On demand Prime 200
------
$8,490
======
</TABLE>
The loans from stockholders were retired on June 28, 1996 with proceeds
from the initial public offering.
Interest of $368,000, $190,000 and $107,000 was expensed by RMEC under the
above loans during January 1, 1996 through June 17, 1996 and the years ended
December 31, 1995 and 1994, respectively, and $924,000 was expensed during the
period September 21, 1990 (date of inception), to June 17, 1996.
NOTE 6 CAPITAL STOCK
COMMON AND PREFERRED STOCK
The Certificate of Incorporation of the Company authorizes the issuance of
up to 40,000,000 shares of common stock and 10,000,000 shares of preferred
stock, the terms, preferences, rights and restrictions of which will be
established by the Board of Directors of the Company. All shares of common stock
have equal voting rights of one vote per share on all matters to be voted upon
by stockholders. Cumulative voting for the election of directors is not
permitted.
F-11
<PAGE> 116
On June 17, 1996, the Company sold 4,000,000 shares of its common stock in
an initial public offering at $23 per share. During July 1996, the Company sold
an additional 600,000 shares at $23 per share when the underwriters exercised
their over-allotment option.
NOTE 7 RELATED PARTY TRANSACTIONS
Historically, Rutherford Oil Corporation ("Rutherford Oil"), which is
controlled by Patrick R. Rutherford, obtained certain oil and gas related and
medical insurance on behalf of the Company and performed certain payroll related
services for the Company. The Company has reimbursed Rutherford Oil for its out
of pocket expenses relating to such insurance and services, which aggregated
$133,000, $731,000, $366,000 and $1,723,000 during period January 1, 1996 to
June 17, 1996 and the years ended December 31, 1995 and 1994 and the period from
September 21, 1990 (date of inception) to December 31, 1996. Subsequent to June
1996 Rutherford Oil has no longer obtained such insurance or performs any such
services on behalf of the Company.
NOTE 8 EMPLOYEE BENEFIT PLANS
KEY EMPLOYEE STOCK PLAN
During 1996, the Company established its 1996 Key Employee Stock Plan (the
"Stock Plan"). Under the Stock Plan, an aggregate of 500,000 shares will be
available for the granting of either stock options or restricted stock awards.
The Compensation Committee of the Board of Directors administers this plan.
Stock options issued under the Stock Plan may not exceed a term of more
than ten years and the stock option price may not be less than the fair market
value of the shares at the time the option is granted. The options are
exercisable ratably over a five year period. At December 31, 1996, a total of
105,750 stock options were granted under the Stock Plan, none of which are
currently exercisable. The exercise price of all options granted is $23.
The Compensation Committee may award shares of restricted stock to
employees for no payment by the employee or for a payment below the fair market
value on the date of grant. Issuance of the stock may be subject to certain
restrictions, but in no case can the conditions continue for more than ten years
from the date of the award. As the shares vest, each employee receiving such
restricted stock has all of the rights of a stockholder, including without
limitation, the right to vote such shares. At December 31, 1996, restricted
stock awards for 51,338 shares had been granted, at no cost to the employees.
Deferred compensation is recorded at the date of the restricted stock award and
is amortized into compensation expense over the vesting period. At December 31,
1996, deferred compensation of $1,185,000 was recorded and related compensation
expense of $127,000 was recognized during the period June 18, 1996 to December
31, 1996. Substantially all restricted stock awards outstanding at December 31,
1996, vest ratably over a five year period.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
During 1996, the Company established its 1996 Non-Employee Director Stock
Option Plan (the "Director Plan"). Under the Director Plan, an aggregate of
50,000 shares of common stock will be available for the granting of stock
options. The exercise price of a stock option granted pursuant to the Director
Plan may not be less than the fair market value of the common stock on the date
of grant and the stock option term may not exceed ten years. Stock options
granted under the Director Plan are exercisable in full after the first
anniversary of grant. The Director Plan provides for an initial grant of stock
options to each non-employee director to purchase 2,500 shares of common stock
contemporaneously with the initial public offering and the annual grant of stock
options to acquire 1,000 shares of stock to each non-employee director serving
on the board of directors following each annual meeting of the stockholders. As
of December 31, 1996, non-employee directors have been granted stock options to
acquire 10,000 shares of common stock, none of which are exercisable. The
exercise price of all options granted to date is $23.
F-12
<PAGE> 117
ACCOUNTING FOR STOCK-BASED COMPENSATION
The Company applies Accounting Principles Board Opinion No. 25, "Accounting
for Stock Issued to Employees", and related interpretations in accounting for
its Stock Plan and Director Plan. Accordingly, no compensation has been
recognized for stock-based compensation other than for restricted stock awards.
Had compensation cost for the stock options issued under the Stock Plan and
Director Plan been determined based upon the fair value at the grant date for
awards under these plans consistent with the methodology prescribed under the
Statement of Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation", the Company's net loss and net loss per share would have been
increased by approximately $1,812,000, or $0.07 per share. The fair value of the
stock options granted during the twelve-month period ended December 31, 1996, is
estimated as $16.32 on the date of grant using the Black-Scholes option pricing
model with the following assumptions: dividend yield of 0%, volatility of 23%,
risk-free interest rate of 6.42%, assumed forfeiture rate of 0%, and an expected
life of 9.5 years.
At December 31, 1996, 342,912 and 40,000 shares of common stock were
reserved for issuance pursuant to the Stock Plan and the Director Plan,
respectively. The remaining weighted average life of the 115,750 options
outstanding at December 31, 1996, is 9.5 years.
NOTE 9 COMMITMENTS AND CONTINGENCIES
GUARANTY AND INDEMNITY AGREEMENT
On February 9, 1996, Thai Romo Limited entered into a Guaranty and
Indemnity Agreement associated with a Bareboat Charter agreement between
Tantawan Services, LLC, as charterer, and Tantawan Production B.V., as lessor,
for the leasing and operation of a Floating Production Storage and Offloading
system (FPSO) known as the Tantawan Explorer. The initial duration of the
Bareboat Charter Agreement is 10 years commencing upon delivery of crude oil to
the FPSO. The hire rate under the Bareboat Charter is $55,000 per day. Thai Romo
has guaranteed payment of 46.3% of these costs or approximately $25,448 per day.
The guaranty terminates upon the expiration of the Bareboat Charter Agreement,
notwithstanding the lawful termination or cancellation of the Bareboat Charter
Agreement. Should the initial term of the agreement be extended or the FPSO
purchased, Thai Romo would remain obligated for 46.3% of any subsequent
obligations incurred by Tantawan Services.
LEASE COMMITMENTS
RMEC is subject to an office lease which expires in February 2002. The
commitment under this lease is as follows (amounts in thousands):
<TABLE>
<CAPTION>
YEAR
- ------------------------------------------------------------
<S> <C>
1997........................................................ $117
1998........................................................ 118
1999........................................................ 126
2000........................................................ 142
Thereafter.................................................. 166
----
$669
====
</TABLE>
Rental expense paid during the periods June 18, 1996 to December 31, 1996
and January 1, 1996 to June 17, 1996 and the years ended December 31, 1995 and
1994 and the period from September 21, 1990 (date of inception), to December 31,
1996, was $45,000, $52,000, $67,000, $77,000 and $285,000, respectively.
NOTE 10 LITIGATION
As of December 31, 1996, the Company is not aware of any current or
potential legal proceeding.
F-13
<PAGE> 118
NOTE 11 SINGLE CUSTOMER
All oil and natural gas produced from the Tantawan Field will be sold to
PTT, which maintains a monopoly over oil and gas transmission and distribution
in Thailand. The Concessionaires are required to give first priority to the Thai
government to purchase the oil and natural gas produced by the Concessionaires.
A gas sales agreement (GSA) with PTT was signed on November 7, 1995. Under
the GSA, which is a take or pay agreement, contracted deliveries of gas to PTT
are required to commence at the conclusion of a 72-hour production test, which
was completed in March 1997. The natural gas price is based on a formula which
provides adjustments to the base price for natural gas on each April 1 and
October 1. Adjustments will be made to reflect changes in (i) wholesale prices
in Thailand, (ii) the U.S. producer price index for oil field machinery and
tools, and (iii) medium fuel oil prices. Adjustment factors for oil field
machinery and medium fuel oil prices may be subsequently adjusted for Thai
Baht/U.S. Dollar fluctuations, since payments from PTT will be in Thai Baht. The
base price was estimated to be equivalent to $2.12 per thousand cubic feet (Mcf)
at January 1, 1997.
The oil and condensate will be purchased by PTT, which has the right of
first refusal on any hydrocarbon liquids produced domestically. The terms and
conditions of a sales agreement are under negotiation pursuant to a Memorandum
of Understanding signed on November 14, 1996. If PTT does not wish to purchase
this oil, then the Company believes that it can sell the oil to a variety of
purchasers.
NOTE 12 SUPPLEMENTAL OIL AND GAS INFORMATION (UNAUDITED)
At December 31, 1996, and 1995 the Concession accounted for 100% of the
Company's future net cash flow from proved reserves.
Included herein is information with respect to oil and gas acquisition,
exploration, development and production activities, which is based on estimates
of year-end oil and gas reserve quantities and estimates of future development
costs and production schedules. The prices used in the reserve estimates are
prices the Company estimated it would have received at the respective date had
the Tantawan and Benchamas fields been producing at such time, except where
fixed and determinable price escalations or oil hedges are provided by contract.
Reserve quantities and future production are based primarily upon reserve
reports prepared by the independent petroleum engineering firm of Ryder Scott
Company. These estimates are inherently imprecise and subject to substantial
revision.
All reserve estimates presented herein were prepared by Ryder Scott
Company, independent petroleum engineers. The Company cautions that there are
many uncertainties inherent in estimating proved reserve quantities, and in
projecting future production rates and the timing of future development
expenditures, including many factors beyond the control of the producer.
Accordingly, these estimates are subject to change as additional information
becomes available. Reservoir engineering is a subjective process of estimating
underground accumulations of oil and gas that cannot be measured in an exact
way, and the accuracy of any reserve estimate is a function of the quality of
available data and of engineering and geological interpretation and judgment.
Results of drilling, testing and production subsequent to the date of an
estimate may justify revision of the estimate. Accordingly, reserve estimates
are often different from the quantities of oil and gas that are ultimately
recovered.
Estimates of future net cash flows from proved reserves of oil and gas were
made in accordance with Statement of Financial Accounting Standards No. 69,
Disclosures about Oil and Gas Producing Activities. The estimates are based on
prices the Company estimated it would have received at the respective date had
the Tantawan and Benchamas fields been producing at such time. Estimated future
cash inflows are reduced by estimated future development and production costs
based on year-end cost levels, assuming continuation of existing economic
conditions, and by estimated future revenue tax expense. Tax expense is
calculated by applying the existing U.S. and Thailand statutory tax rates,
including any known future changes. The results of these disclosures should not
be construed to represent the fair market value of the Company's oil and gas
properties. A market value determination
F-14
<PAGE> 119
would include many additional factors including: (i) anticipated future
increases and decreases in oil and gas prices and production and development
costs; (ii) an allowance for return on investment; (iii) the value of additional
reserves not considered proved at the present, which may be recovered as a
result of further exploration and development activities; and (iv) other
business risks.
In computing the present value of the estimated future net cash flows, a
discount factor of 10% was used pursuant to SEC regulations to reflect the
timing of those net cash flows. Present value, regardless of the discount rate
used, is materially affected by assumptions about timing of future production,
which may prove to have been inaccurate. The following reserve value data
represent estimates only, which are subject to uncertainty given the current
energy markets.
Capitalized Costs of Oil and Gas Producing Activities
The following table sets forth the aggregate amounts of capitalized costs
relating to the Company's oil and gas producing activities and the aggregate
amount of related accumulated depreciation and amortization as of the dates
indicated (amounts in thousands).
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
1996 1995
-------- -------
<S> <C> <C>
Productive and nonproductive properties being amortized..... $123,300 $55,951
Less accumulated depreciation and amortization.............. -- --
-------- -------
Net capitalized costs....................................... $123,300 $55,951
======== =======
</TABLE>
Costs Incurred in Oil and Gas Producing Activities
The following table reflects the costs incurred in oil and gas property
acquisition, exploration and development activities during the periods indicated
(amounts in thousands).
<TABLE>
<CAPTION>
SEPTEMBER 1990
(DATE OF
YEAR ENDED DECEMBER 31, INCEPTION) TO
-------------------------- DECEMBER 31,
1996 1995 1994 1996
------- ------- ------ --------------
<S> <C> <C> <C> <C>
Property acquisition costs -- proved
properties............................ $ -- $ 4,224 $ -- $ 4,224
Exploration costs....................... 7,460 26,601 8,159 53,004
Development cost........................ 59,890 6,182 -- 66,072
------- ------- ------ --------
$67,350 $37,007 $8,159 $123,300
======= ======= ====== ========
</TABLE>
F-15
<PAGE> 120
The following table sets forth the Company's interest in estimated total
proved oil and gas reserves for the years ended December 31, 1996, 1995, and
1994:
<TABLE>
<CAPTION>
OIL GAS
(Bbls) (MMcf)
--------- ------
<S> <C> <C>
Total proved reserves at December 31, 1993.................. 5,424,813 33,474
New discoveries and extensions.............................. 2,249,559 23,265
--------- ------
Total proved reserves at December 31, 1994.................. 7,674,372 56,739
New discoveries and extensions.............................. 7,634,009 43,376
Revisions of previous estimates............................. 133,636 5,208
Purchase of reserves........................................ 3,554,975 26,284
--------- ------
Total proved reserves at December 31, 1995.................. 18,996,992 131,607
New discoveries and extensions.............................. 6,209,030 46,447
Revisions of previous estimates............................. (3,874,242) (33,056)
--------- ------
Total proved reserves at December 31, 1996.................. 21,331,780 144,998
========= ======
Proved developed reserves:
December 31, 1994......................................... -- --
December 31, 1995......................................... -- --
December 31, 1996......................................... 5,191,993 45,998
========= ======
</TABLE>
Proved reserves are estimated quantities of natural gas, crude oil, and
condensate which geological and engineering data demonstrate, with reasonable
certainty, to be recoverable in future years from known reservoirs under
existing economic and operating conditions. Proved developed reserves are proved
reserves that can be expected to be recovered through existing wells with
existing equipment and operating methods. Total reserves do not include reserves
acquired in the MOTL purchase on March 3, 1997.
Standardized Measure of Discounted Future Net Cash Flows
The following table reflects the Standardized Measure of Discounted Future
Net Cash Flows relating to the Company's interest in proved oil and gas reserves
as of December 31, 1996, 1995 and 1994 (amounts in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------------
1996 1995 1994
--------- --------- --------
<S> <C> <C> <C>
Future cash inflows.............................. $ 811,239 $ 621,742 $265,802
Future development costs......................... (184,753) (127,198) (94,155)
Future production costs.......................... (245,398) (207,352) (60,306)
--------- --------- --------
Future net cash inflows before income taxes...... 381,088 287,192 111,341
Future income taxes.............................. (134,276) (137,204) (48,948)
--------- --------- --------
Future net cash flows............................ 246,812 149,988 62,393
10% discount..................................... (103,446) (74,669) (28,429)
--------- --------- --------
Standardized measure of discounted future net
cash inflows................................... $ 143,366 $ 75,319 $ 33,964
========= ========= ========
</TABLE>
F-16
<PAGE> 121
Principal changes in the "Standardized Measure of Discounted Futures Net
Cash Flows" attributable to the Company's proved oil and gas reserves for the
periods indicated are as follows (amounts in thousands):
<TABLE>
<CAPTION>
SEPTEMBER 21,
1990
(DATE OF
YEAR ENDED DECEMBER 31, INCEPTION) TO
------------------------------ DECEMBER 31,
1996 1995 1994 1996
-------- -------- -------- --------------
<S> <C> <C> <C> <C>
New discoveries and extensions....... $101,776 $ 52,372 $ 17,235 $195,971
Revisions of quantity estimates...... (51,043) 6,027 -- (45,016)
Purchases of reserves in place....... -- 27,182 -- 27,182
Net changes in sales and transfer
prices, net of production costs.... 5,647 (2,712) 8,521 4,816
Accretion of discount................ 13,163 5,211 1,717 21,512
Net Change in income taxes........... 2,405 (38,163) (14,159) (53,907)
Change in production rates (timing)
and other.......................... (3,901) (8,561) 7,472 (7,192)
-------- -------- -------- --------
Net Change........................... $ 68,047 $ 41,356 $ 20,786 $143,366
======== ======== ======== ========
</TABLE>
NOTE 13 FINANCIAL INSTRUMENTS
Determination of Fair Values of Financial Instruments
Fair value for cash and cash equivalents, short-term investments,
receivables and payables at December 31, 1996, and December 31, 1995,
approximates carrying value.
The carrying amount of cash equivalents and value added tax refund
receivable approximates fair value because of the short maturity of these
instruments. The carrying amount of joint interest receivables and payables and
accounts payable and accrued expenses approximates fair value because they are
generally paid or earned within sixty days. The carrying amount of note payable
to bank and loans from stockholders approximates fair value because the interest
rate is reset at periodic intervals. See Note 2 for discussion of the fair value
of hedging and swap options.
F-17
<PAGE> 122
RUTHERFORD-MORAN OIL CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT FOR SHARE INFORMATION)
ASSETS
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1997 1996
------------- ------------
(UNAUDITED)
<S> <C> <C>
Current assets:
Cash and cash equivalents................................. $ 3,415 $ 444
Accounts receivable....................................... 2,658 --
Inventory................................................. 7,581 --
Value added tax refund receivable......................... 5,829 2,806
Joint interest receivables................................ 3,456 150
Other..................................................... 369 17
-------- --------
Total current assets.............................. 23,308 3,417
Property and equipment, at cost:
Oil and gas properties (full cost method)................. 217,699 123,300
Office furniture and fixtures............................. 376 197
Accumulated depreciation, depletion and amortization...... (13,269) (37)
-------- --------
Net property and equipment........................ 204,806 123,460
Other assets:
Deferred financing costs, net............................... 4,278 1,548
Restricted cash............................................. 24,300 --
Deferred charges............................................ 1,354 1,400
-------- --------
Total assets...................................... $258,046 $129,825
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued liabilities.................. $ 4,944 $ 852
Joint interest payable.................................... 6,320 2,715
-------- --------
Total current liabilities......................... 11,264 3,567
Note payable to bank........................................ 29,996 22,842
10 3/4 senior subordinated notes............................ 120,000 --
Deferred income taxes....................................... 3,682 1,391
Premium on written option................................... 1,238 1,400
Stockholders' equity:
Preferred stock, $0.01 par value, 10,000,000 shares
authorized, no shares issued and outstanding...........
Common stock, $0.01 par value, 40,000,000 shares
authorized, 25,612,440 and 25,607,000 shares issued and
outstanding at September 30, 1997 and December 31,
1996, respectively..................................... 256 256
Additional paid-in capital................................ 103,302 103,143
Accumulated deficit....................................... (10,706) (1,716)
Deferred compensation..................................... (986) (1,058)
-------- --------
Total stockholders' equity........................ 91,866 100,625
-------- --------
Total liabilities and stockholders' equity................ $258,046 $129,825
======== ========
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
F-18
<PAGE> 123
RUTHERFORD-MORAN OIL CORPORATION
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT FOR SHARE INFORMATION)
<TABLE>
<CAPTION>
NINE MONTHS JUNE 18 JANUARY 1
ENDED THROUGH THROUGH
SEPTEMBER 30, 1997 SEPTEMBER 30, 1996 JUNE 17, 1996
------------------ ------------------ ---------------
(COMPANY) (COMPANY) (PREDECESSORS)
<S> <C> <C> <C>
Revenues:
Oil and Gas Revenue.................. $ 25,784 $ -- $ --
Interest Income...................... 162 158 --
----------- ----------- -----------
Total Revenues............... 25,946 158 --
----------- ----------- -----------
Expenses:
Operating expense.................... 17,100 -- --
Interest expense..................... 4,620 248 395
Depreciation, depletion and
amortization...................... 13,232 16 4
Salaries and wages................... 837 165 108
General and administrative........... 3,156 592 180
Net gain on futures contracts........ (275) -- --
Foreign currency exchange loss,
net............................... 1,850 -- --
----------- ----------- -----------
Total Expenses............... 40,520 1,021 687
----------- ----------- -----------
Loss before income taxes..... (14,574) (863) (687)
Income tax (benefit) expense........... (5,584) (152) 1,921
----------- ----------- -----------
Net loss..................... $ (8,990) $ (711) $ (2,608)
=========== =========== ===========
Net loss per share........... $ (0.35) $ (0.03) $ (0.12)
=========== =========== ===========
Weighted average number of common
shares outstanding................... 25,612,440 25,438,462 21,000,000
=========== =========== ===========
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
F-19
<PAGE> 124
RUTHERFORD-MORAN OIL CORPORATION
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS JUNE 18 JANUARY 1
ENDED THROUGH THROUGH
SEPTEMBER 30, 1997 SEPTEMBER 30, 1996 JUNE 17, 1996
------------------ ------------------ ---------------
(COMPANY) (COMPANY) (PREDECESSORS)
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss................................... $ (8,990) $ (711) $ (2,608)
Adjustments to reconcile net loss to cash
flows provided by (used in) operating
activities:
Depreciation, depletion and
amortization.......................... 13,886 245 4
Net gain on futures contracts........... (275) -- --
Deferred income taxes................... (5,584) (152) 1,921
Foreign currency exchange loss, net..... 1,850 -- --
Changes in working capital.............. (12,738) (7,104) 5,605
-------- -------- --------
Cash flows provided by (used in) operating
activities................................. (11,851) (7,722) 4,922
-------- -------- --------
Cash flows from investing activities:
Investment in oil and gas properties....... (57,112) (14,835) (30,377)
Investment in Maersk, net of cash
acquired................................ (29,414) -- --
Other capital expenditures................. (179) (98) (38)
-------- -------- --------
Cash flows used in investing
activities............................ (86,705) (14,933) (30,415)
-------- -------- --------
Cash flows from financing activities:
Deferred financing costs................... (187) (1,689) --
Exercise of call option on Thai Romo
Limited stock........................... -- (3,130) --
Proceeds from initial public offering...... -- 97,103 --
Redemption of Rutherford-Moran Exploration
Company stock by majority
stockholders............................ -- (12,360) --
Proceeds from shareholder loans............ -- -- 15,654
Payments on shareholder loans.............. -- (24,144) --
10 3/4% senior subordinated notes.......... 120,000 -- --
Bond offering costs........................ (2,965) -- --
Restricted cash............................ (24,300) -- --
Borrowings under bank notes................ 106,330 2,000 29,164
Repayment of bank notes.................... (99,176) (49,664) (13,885)
-------- -------- --------
Cash flows provided by financing
activities............................ 99,702 8,116 30,933
-------- -------- --------
Net increase (decrease) in cash and cash
equivalents........................... 1,146 (14,539) 5,440
Effect of exchange rate changes on
cash.................................. 1,825 -- --
Cash and cash equivalents, beginning of
period..................................... 444 15,271 9,831
-------- -------- --------
Cash and cash equivalents, end of period..... $ 3,415 $ 732 $ 15,271
======== ======== ========
Supplemental disclosures of interest paid in
cash....................................... $ 1,031 $ 56 $ 767
======== ======== ========
Supplemental disclosures of noncash investing
and financing activities:
Capitalization of amortized loan
acquisition costs....................... $ -- $ -- $ 168
======== ======== ========
Interests in Thai Romo Limited and
Rutherford-Moran Exploration Company
contributed for common stock............ $ -- $ -- $ 24,682
======== ======== ========
Predecessor retained earnings reclassified
to additional paid-in capital........... $ -- $ 4,021 $ --
======== ======== ========
Premium deferred and premium on written
options................................. $ 338 $ 443 $ 557
======== ======== ========
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
F-20
<PAGE> 125
RUTHERFORD-MORAN OIL CORPORATION
NOTES TO UNAUDITED CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accompanying unaudited consolidated financial statements include all
adjustments necessary to present fairly the consolidated financial position of
Rutherford-Moran Oil Corporation ("RMOC" or the "Company") at September 30, 1997
and December 31, 1996, and its results of operations and cash flows for the nine
months ended September 30, 1997 and 1996. The financial statements herein should
be read in conjunction with the consolidated financial statements and notes to
the consolidated financial statements as of and for the year ended December 31,
1996, as included in the Company's annual report on Form 10-K.
In the opinion of management, the unaudited condensed consolidated
financial statements as of September 30, 1997 and for the nine months ended
September 30, 1997, and the periods June 18, 1996 through September 30, 1996 and
January 1, 1996 through June 17, 1996 include all material adjustments, which
consist only of normal recurring adjustments necessary for a fair presentation,
and are not necessarily indicative of an entire year.
In order to prepare these financial statements in conformity with generally
accepted accounting principles, management of the Company has made a number of
estimates and assumptions relating to the reporting of assets and liabilities,
the disclosure of contingent assets and liabilities and reserve information
(which affects the depletion calculation as well as the computation of the
ceiling limitation). Actual results could differ from those estimates.
(2) ORGANIZATION
Rutherford-Moran Exploration Company ("RMEC") was formed on September 21,
1990, for the purpose of holding an interest in an oil and gas concession in
Thailand through Thai Romo Limited ("Thai Romo"). RMEC paid all of the expenses
of the concession on behalf of Thai Romo through November 4, 1993.
Effective September 24, 1990, the stockholders of RMEC elected to have it
treated as a Subchapter S Corporation under the Internal Revenue Code of 1986,
as amended. As such, RMEC did not incur federal income taxes at the corporate
level prior to June 18, 1996, and its taxable income or loss was passed through
to its stockholders based on their interests.
In June 1991, Thai Romo was organized as a foreign corporation under the
laws of the Kingdom of Thailand for the purpose of holding an interest in an oil
and gas concession. In August 1991, Thai Romo, with two other companies, was
awarded Petroleum Concession 1/2534/36 (the "Concession"), offshore Block B8/32
in the Gulf of Thailand from the Ministry of Industry in Thailand to explore for
petroleum. A subsidiary of Pogo Producing Company is the operator of the
Concession. In November 1993, Thai Romo amended its Articles of Association so
that it would be treated as a partnership for U.S. income tax purposes. As such,
Thai Romo was not subject to federal income taxes from November 1993 to June 17,
1996. Income and losses earned by Thai Romo were passed through to the partners
on the basis of their interest in Thai Romo.
As RMEC and Thai Romo are now part of the Company's consolidated tax
return, RMEC and Thai Romo recorded a deferred tax liability and expense of
$1,921,000 on June 17, 1996 representing the difference between the book basis
and tax basis of its foreign oil and gas properties.
(3) PRINCIPLES OF PRESENTATION
In April 1996, Rutherford/Moran Oil Corporation changed its name to RMEC.
Effective June 17, 1996, the stockholders of RMEC and the partners of Thai Romo
exchanged their interests for shares of
F-21
<PAGE> 126
RUTHERFORD-MORAN OIL CORPORATION
NOTES TO UNAUDITED CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
common stock of the newly formed entity, RMOC. RMOC is the parent company of
RMEC and Thai Romo Holdings, Inc. ("TRH"). RMEC and TRH collectively own the
outstanding shares of Thai Romo. During June 1996, RMOC sold 16% of its common
stock in an initial public offering (the "Offering") in conjunction with the
consummation of the exchange of RMEC common stock and Thai Romo interests for
common stock of RMOC. In conjunction with the Offering, RMEC redeemed for $12.4
million approximately 56,000 shares of its common stock from Patrick R.
Rutherford and John A. Moran, majority stockholders of RMEC (the "Redemption"),
exercised RMEC's call option on 3% of the partners' interest in Thai Romo held
by Red Oak Holdings, Inc. for $3.1 million and repaid outstanding debt of $62
million owed stockholders and banks. On June 18, 1996, the stockholders' equity
accounts were adjusted to reflect the deficit accumulated during the development
stage to additional paid-in capital upon RMEC and Thai Romo becoming subject to
federal income taxes. During July 1996, an additional 2.4% of RMOC's common
stock was sold when the underwriters exercised their over-allotment option.
The consolidated financial statements for 1997 include the accounts of
RMOC, its wholly owned subsidiaries and its proportionate ownership of B8/32
Partners, Limited ("B8/32 Partners"), in which RMOC owns 46.34% of the
outstanding voting shares. All material intercompany accounts and transactions
have been eliminated in the consolidation.
The financial statements for the the period January 1, 1996 through June
17, 1996, include the accounts of RMEC and Thai Romo (combined). All material
intercompany accounts and transactions have been eliminated in the combination.
The combined financial statements are presented due to the commonality of the
stockholders and partners of RMEC and Thai Romo.
During the period from September 21, 1990, through December 31, 1996, the
Company was considered a development stage company and its sole activity was the
development of Block B8/32 in the Gulf of Thailand. Production from the Tantawan
Field commenced in February 1997, at which time the Company was no longer
considered a development stage company.
(4) OIL AND GAS PROPERTY ACQUISITION
On December 19, 1996, the Company, through its wholly owned subsidiary,
Thai Romo, exercised its preferential right to purchase 46.34% of the
outstanding shares of Maersk Oil (Thailand) Limited ("MOTL"), a wholly owned
subsidiary of Maersk Olie og Gas AS of Copenhagen, Denmark ("Maersk"). MOTL is a
former co-concessionaire in Block B8/32 owning a 31.67% interest. The purchase
was consummated on March 3, 1997, with TRH, a wholly owned subsidiary of the
Company and Thai Romo's nominee under the Share Sales Agreement with Maersk,
purchasing the shares for $28.6 million, which included $1.6 million in
satisfaction of outstanding debt. After the closing, MOTL was renamed B8/32
Partners.
The remaining 53.66% of MOTL's stock was purchased by Thaipo Limited
("Thaipo"), a subsidiary of Pogo Producing Company ("Pogo"), and by Palang
Sophon Limited ("Palang") of Bangkok, Thailand. Thaipo, Palang and MOTL were
co-concessionaires with Thai Romo prior to the sale of MOTL. As a result of the
purchase, RMOC now effectively owns a uniform interest of 46.34% in the entire
Block.
The $28.6 million purchase price of the acquisition has been capitalized
using the purchase method of accounting and has been allocated between proven
properties and unproven properties. Production from the properties acquired is
anticipated to commence in early 1999 when the initial development plan at
Benchamas Field is scheduled to be completed. Finalization of the purchase price
allocation is pending the receipt of certain requested information from the
seller, fair value appraisals, and analysis of reserves estimates by the
Company.
F-22
<PAGE> 127
RUTHERFORD-MORAN OIL CORPORATION
NOTES TO UNAUDITED CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company financed the purchase of MOTL by utilizing borrowings under its
Revolving Credit Facility ("Revolving Credit Facility") and $20 million from a
new Credit Agreement entered into with The Chase Manhattan Bank ("Chase"), which
was repaid on May 2, 1997.
(5) DEBT
CREDIT FACILITY
On September 20, 1996, the Company entered into a $150 million Revolving
Credit Facility with a group of commercial lenders. The Revolving Credit
Facility has a final maturity of September 30, 1999, and had an initial
borrowing base limitation of $60 million. On April 29, 1997 the borrowing base
limitation was redetermined to $120 million. Subsequent to the issuance of the
Company's 10.75% Senior Subordinated Notes ("Notes") in September 1997, the
borrowing base was reset to $60 million. The Revolving Credit Facility is
secured by the stock of certain subsidiaries of the Company.
Under the terms of the Revolving Credit Facility, outstanding borrowings as
of September 30, 1997 bore interest at the Base Rate (defined as the greater of
the Federal Funds Rate plus .5% or the agent bank's prime rate) plus .25% or the
Eurodollar Rate (defined as an average of the London Interbank Offered Rate
("LIBOR") of two banks) plus 1.75%, at the Company's option. Interest is payable
quarterly. The Company is also assessed a commitment fee equal to .5% per annum
on the average daily balance of the unused borrowing base.
On September 8, 1997, the Company entered into a Credit Agreement ("Credit
Agreement") with The Chase Manhattan Bank for an additional borrowing of $5
million. The Credit Agreement contains covenants substantially identical to
those in the Revolving Credit Facility. The Credit Agreement was repaid on
September 29, 1997 with proceeds from the Notes.
The Revolving Credit Facility provides for semi-annual borrowing base
redeterminations as well as certain restrictions, including limitations on
additional indebtedness, payment of dividends and maintenance of an interest
coverage ratio. As of September 30, 1997, the Company was not in compliance with
one of its financial covenants; however, such noncompliance has been waived by
its lenders.
At September 30, 1997, $30 million was outstanding under the Revolving
Credit Facility at interest rates ranging from 7.375% to 7.4375%.
NOTES
On September 29, 1997, the Company issued $120 million of Notes due 2004 at
an annual interest rate of 10.75%. The proceeds were used to repay $93 million
of outstanding indebtedness under the Revolving Credit Facility and Credit
Agreement and to purchase $24.3 million of securities which were escrowed to pay
interest on the Notes. The Notes contain customary covenants, including
limitations on the incurrence of additional indebtedness, restricted payments
and the establishment of certain liens.
(6) CRUDE OIL HEDGING ACTIVITIES
During the first quarter of 1996, the Company entered into crude oil price
swaps with an affiliate of one of its lenders. While the swaps are intended to
reduce the Company's exposure to declines in the market price of crude oil, they
may limit the Company's gain from increases in the market price. The crude oil
price swaps qualify as hedges; and as long as they correlate with production
based on engineering estimates, any gains and losses will be recorded when the
related oil production has been delivered. Gains and losses on closed crude oil
price swap agreements will be deferred and amortized over the original term of
the agreement. Should the crude oil price swaps cease to be recognized as a
F-23
<PAGE> 128
RUTHERFORD-MORAN OIL CORPORATION
NOTES TO UNAUDITED CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
hedge, subsequent changes in value will be recorded in the statement of
operations. At September 30, 1997, the crude oil price swap agreements
incorporated one million barrels ("MMbbl") of oil volumes from April through
December 1997 at a weighted average price of $15.92 per Bbl and 1.75 MMbbl of
oil volumes from January through December 1998 at a weighted average price of
$15.92 per Bbl. On April 1, 1997, the swaps went into effect and require
quarterly settlement between the Company and an affiliate of one of its lenders.
During the period July 1 through September 30, 1997, Brent crude oil prices
averaged $18.61 per barrel, resulting in a reduction in oil and gas revenues of
$895,000. The related deferred charge of $1.8 million is being amortized against
oil and gas revenues as the hedged volumes expire, resulting in amortization of
$434,000 being recorded during the nine months ended September 30, 1997.
Based on current production estimates, the Company anticipates producing
approximately 900,000 barrels of oil during 1997; therefore, approximately
100,000 barrels of the crude oil price swap agreement for 1997 is considered
under current accounting literature to be speculative and a loss of $2,500 and
$275,000 has been recorded in the statement of operations during the three and
nine months, respectively, ended September 30, 1997 to reflect the fair market
value of the speculative position at September 30, 1997.
At the same time, the Company sold to an affiliate of one of its lenders an
option to purchase 1.25 MMbbl of aggregate oil volumes from January through
December 1999 at a price of $18.30 per Bbl. The Company has accounted for the
swap option separately as it does not qualify as a hedge. At September 30, 1997,
the Company estimates the liability associated with this position to be $1.2
million. During the period April 1 through September 30, 1997, the liability was
decreased by $550,000 to reflect the decreased cost the Company would incur if
it chose to settle the swap option. The decrease has been recognized in the
statement of operations.
The cost of the swap and the swap option at October 3, 1997, are $8 million
and $1.4 million, respectively.
(7) REVENUE RECOGNITION
The Company recognizes revenues at the time of transfer to the purchaser;
however, crude oil inventory is recorded at the cost of production and related
depletion upon transfer to the floating production, storage and off-loading
vessel.
(8) FOREIGN TRANSLATION GAIN/LOSS
The Company follows SFAS 52, "Foreign Currency Translation", which requires
that business transactions and foreign operations recorded in a foreign currency
be restated in U.S. dollars, which is the Company's functional currency.
Revenues and expenses are translated at an average exchange rate for the month.
Transaction gains and losses that arise from exchange rate fluctuations on
transactions denominated in a currency other than the functional currency are
included in the results of operations as incurred. During the nine months ended
September 30, 1997, currency translations resulted in a loss of $1.9 million.
(9) OIL AND GAS PROPERTY AND EQUIPMENT
The Company and its subsidiaries follow the full cost method of accounting
for its investment in oil and gas properties. Under this method of accounting,
all costs of acquisition, exploration and development of oil and natural gas
reserves are capitalized into a "full cost pool" as incurred. Properties in the
F-24
<PAGE> 129
RUTHERFORD-MORAN OIL CORPORATION
NOTES TO UNAUDITED CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
pool are depleted and charged to operations utilizing the unit-of-production
method based on the ratio of current production to total proved oil and natural
gas reserves.
Interest in connection with expenditures on major exploration projects is
capitalized. During the nine months ended September 30, 1997, $733,000, of
interest was capitalized. During the nine months ended September 30, 1996, $1.6
million of interest was capitalized.
F-25
<PAGE> 130
======================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
OTHER INFORMATION AND REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY OTHER PERSON. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE OR EXCHANGE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED
IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY
SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH
SUCH OFFER OR SOLICITATION IS UNLAWFUL.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.................. 4
Prospectus Summary..................... 5
Risk Factors........................... 18
The Exchange Offer..................... 28
Use of Proceeds........................ 36
Capitalization......................... 36
Selected Financial Data................ 37
Management's Discussion and Analysis of
Financial Condition and Results of
Operations........................... 38
Business and Properties................ 44
Management............................. 55
Description of Revolving Credit
Facility............................. 58
Description of the Notes............... 59
Certain Federal Income Tax
Consequences......................... 95
Notice to Canadian Residents........... 97
Legal Matters.......................... 98
Experts................................ 98
Special Note Regarding Forward-Looking
Statements........................... 99
Plan of Distribution................... 100
Certain Definitions.................... 101
Index to Financial Statements.......... F-1
Independent Auditors' Report........... F-2
</TABLE>
---------------------
UNTIL MARCH , 1998 (90 DAYS AFTER THE DATE OF THIS PROSPECTUS) ALL DEALERS
EFFECTING TRANSACTIONS IN THE NEW NOTES, WHETHER OR NOT PARTICIPATING IN THIS
DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO
THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN SELLING NEW NOTES
RECEIVED IN EXCHANGE FOR ORIGINAL NOTES HELD FOR THEIR OWN ACCOUNT. SEE "PLAN OF
DISTRIBUTION."
======================================================
======================================================
$120,000,000
RUTHERFORD-MORAN
OIL CORPORATION
10 3/4% Senior Subordinated
Notes due 2004
------------
PROSPECTUS
------------
December , 1997
======================================================
<PAGE> 131
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Restated Certificate of Incorporation contains a provision
that eliminates the personal liability of a director to the Company and its
stockholders for monetary damages for breach of his fiduciary duty as a director
to the extent currently allowed under the Delaware General Corporation Law. If a
director were to breach such duty in performing his duties as a director,
neither the Company nor its stockholders could recover monetary damages from the
director, and the only course of action available to the Company's stockholders
would be equitable remedies, such as an action to enjoin or rescind a
transaction involving a breach of fiduciary duty. To the extent certain claims
against directors are limited to equitable remedies, the provision in the
Company's Restated Certificate of Incorporation may reduce the likelihood of
derivative litigation and may discourage stockholders or management from
initiating litigation against directors for breach of their fiduciary duty.
Additionally, equitable remedies may not be effective in many situations. If a
stockholder's only remedy is to enjoin the completion of the Board of Directors'
action, this remedy would be ineffective if the stockholder does not become
aware of a transaction or event until after it has been completed. In such a
situation, it is possible that stockholders and the Company would have no
effective remedy against the directors. Under the Company's Restated Certificate
of Incorporation, liability for monetary damages remains for (i) any breach of
the duty of loyalty to the Company or its stockholders, (ii) acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) payment of an improper dividend or improper repurchase of the
Company's stock under Section 174 of the Delaware General Corporation Law, or
(iv) any transaction from which the director derived an improper personal
benefit. The Company's Restated Certificate of Incorporation further provides
that in the event the Delaware General Corporation Law is amended to allow the
further elimination or limitation of the liability of directors, then the
liability of the Company's directors shall be limited or eliminated to the
fullest extent permitted by the amended Delaware General Corporation Law.
Under Section 54 of the Company's Bylaws as currently in effect, each
person who is or was a director or officer of the Company or a subsidiary of the
Company, or who serves or served any other enterprise or organization at the
request of the Company, shall be indemnified by the Company to the full extent
permitted by the Delaware General Corporation Law.
Under Delaware law, to the extent that a person is successful on the merits
in defense of a suit or proceeding brought against him by reason of the fact
that he is or was a director of officer of the Company, or serves or served any
other enterprise or organization at the request of the Company, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred in connection with such action.
Under Delaware law, to the extent an indemnified person is not successful
in defense of a third party civil suit or a criminal suit, or if such suit is
settled, such person shall be indemnified against both (i) expense, including
attorneys' fees, and (ii) judgments, fines and amounts paid in settlement if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interest of the Company, and with respect to any criminal
action, had no reasonable cause to believe his conduct was unlawful except that
if such person is adjudged to be liable in such a suit for negligence or
misconduct in the performance of his duty to the Company, he cannot be made
whole even for expenses unless the court determines that he is fully and
reasonably entitled to indemnity for such expenses.
The Company has obtained insurance to protect officers and directors form
certain liabilities, including liabilities against which the Company cannot
indemnify its directors and officers.
The Company has entered into indemnification agreements with each of the
directors of the Company. Pursuant to such agreements, the Company has agreed to
indemnify and hold each such
II-1
<PAGE> 132
director harmless to the fullest extent permitted by law, from any loss, damage
or liability incurred in the course of his respective service as a director of
the Company. The amount paid by the Company is reducible by the amount of
insurance paid to or on behalf of such director with respect to any event giving
rise to indemnification. Each such director's right to indemnification survives
his respective death or termination as director.
ITEM 21. EXHIBITS
(a) The following is a complete list of Exhibits filed as part of this
Registration Statement, which are incorporated herein:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
3.1** -- Restated Certificate of Incorporation of Rutherford-Moran
Oil Corporation
3.2** -- Bylaws of Rutherford-Moran Oil Corporation dated April 1,
1996
3.3* -- Certificate of Incorporation of Rutherford-Moran
Exploration Company
3.4* -- Bylaws of Rutherford-Moran Exploration Company
3.5* -- Certificate of Incorporation of Thai Romo Holdings, Inc.
3.6* -- Bylaws of Thai Romo Holdings, Inc.
3.7* -- Articles of Association of Thai Romo Limited
4.1*** -- Indenture, dated as of September 29, 1997, between the
Registrant and Bank of Montreal Trust Company
4.2*** -- Form of Note (contained in Exhibit 1 to Rule
144A/Regulation S Appendix of the Indenture filed as
Exhibit 4.1 hereto).
4.3*** -- Registration Rights Agreement, dated as of September 29,
1997, between the Registrant and the Initial Purchasers
5.1* -- Opinion of Hughes & Luce, L.L.P.
10.1** -- Ministry of Industry Petroleum Concession dated August 1,
1991 awarded to Thai Romo, Thaipo and Maersk Oil.
10.2** -- Ministry of Industry Supplementary Petroleum Concession
(No. 1) to Petroleum Concession No. 1/2534/36 dated March
6, 1992, awarded to Maersk Oil (Thailand) Ltd. and Thaipo
Limited and Thai Romo Limited.
10.3** -- Ministry of Industry Supplementary Petroleum Concession
(No. 2) to Petroleum Concession No. 1/2534/36 dated
September 4, 1995, awarded to Thaipo Limited and Thai
Romo Limited.
10.4** -- Joint Operating Agreement effective as of March 3, 1995
among Thai Romo Limited, Thaipo Limited and The
Sophonpanich Co., Ltd.
10.5** -- Joint Operating Agreement dated August 1, 1991 among Thai
Romo, Thaipo, Maersk Oil and Sophonpanich
10.6** -- Gas Sales Agreement dated November 7, 1995 between
Petroleum Authority of Thailand, Thai Romo, Thaipo, and
Sophonpanich
10.7* -- First Amendment to the Gas Sales Agreement dated November
12, 1997 between Petroleum Authority of Thailand, B8/32
Partners Limited, Thaipo Limited, Thai Romo Limited and
Palang Sophon Limited
10.8** -- Bareboat Charter Agreement dated February 9, 1996 between
Tantawan Production B.V. and Tantawan Services, L.L.C.
10.9** -- Operating Agreement between SBM Marine Services Thailand
Ltd. and Tantawan Services, L.L.C. dated February 9,
1996.
</TABLE>
II-2
<PAGE> 133
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.10** -- Guaranty and Indemnity Agreement dated February 9, 1996,
by Thai Romo to Tantawan Production B.V.
10.11** -- Guaranty and Indemnity Agreement dated February 9, 1996,
by Thai Romo to SBM Marine Services Thailand Ltd.
10.12** -- 1996 Key Employee Stock Plan (and form of option and
stock agreements).
10.13** -- 1996 Non-Employee Director Stock Option Plan (and form of
option agreement)
10.14** -- $150,000,000 Revolving Credit Agreement dated as of
September 20, 1996 with the Chase Manhattan Bank as
Lender and Agent.
12.1* -- Computation of Deficit of Loss to Fixed Charges.
21.1* -- Subsidiaries of the Registrant.
23.1* -- Consent of Hughes & Luce, L.L.P. (contained in its
opinion filed as Exhibit 5.1 hereto).
23.2* -- Consent of KPMG Peat Marwick LLP
23.3* -- Consent of Ryder Scott Company
24.1* -- Power of Attorney (appearing on Signature Page).
25.1* -- Form T-1 Statement of Eligibility of Trustee.
99.1* -- Form of Letter of Transmittal and Notice of Guaranteed
Delivery.
</TABLE>
- ---------------
* Filed herewith.
** Incorporated by reference from the Company's Registration Statement on Form
S-1, as amended (File No. 333-4122).
*** Incorporated by reference from the Company's Form 10-Q (File No. 002-20849).
(b) Financial Statement Schedules.
None
ITEM 22. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE> 134
The Registrant hereby undertakes to respond to requests for information
that is incorporated by reference into the Prospectus pursuant to Item 4, 10(b),
11, or 13 of the Form S-4, within one business day of receipt of such request,
and to send the incorporated documents by first-class mail or other equally
prompt means. This includes information contained in documents filed subsequent
to the effective date of the registration statement through the date of
responding to the request.
The Registrant hereby undertakes to supply by means of a post-effective
amendment all information concerning a transaction, and the company being
acquired involved therein, that was not the subject of and included in the
registration statement when it became effective.
The undersigned Registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
Registrant undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other Items of the applicable form.
The Registrant undertakes that every prospectus (i) that is filed pursuant
to the paragraph immediately preceding, or (ii) that purports to meet the
requirements of section 10(a)(3) of the Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes that:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) ((S)230.424(b) of this
chapter), if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrants
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such posteffective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-4
<PAGE> 135
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on the 25th day of November, 1997.
RUTHERFORD-MORAN OIL CORPORATION
By: /s/ PATRICK R. RUTHERFORD
----------------------------------
Patrick R. Rutherford
President and Chief Executive
Officer
POWER OF ATTORNEY
Known All Men By These Presents that each person whose signature appears
below constitutes and appoints Patrick R. Rutherford, David F. Chavenson, and
Michael D. McCoy, and each of them, such person's true and lawful
attorneys-in-fact and agents, with full power of substitution and revocation,
for such person and in such person's name, place and stead, in any and all
amendments (including post-effective amendments to this Registration Statement)
and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his substitute of substitutes, may lawfully do or cause
to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <C>
/s/ JOHN A. MORAN Chairman of the Board November 25, 1997
- -----------------------------------------------------
John A. Moran
/s/ PATRICK R. RUTHERFORD President, Chief Executive Officer November 25, 1997
- ----------------------------------------------------- and Director (principal executive
Patrick R. Rutherford officer)
/s/ MICHAEL D. MCCOY Executive Vice President, Chief November 25, 1997
- ----------------------------------------------------- Operating Officer and Director
Michael D. McCoy
/s/ HOWARD GITTIS Director November 25, 1997
- -----------------------------------------------------
Howard Gittis
/s/ JERE W. MCKENNY Director November 25, 1997
- -----------------------------------------------------
Jere W. McKenny
/s/ HARRY C. LEE Director November 25, 1997
- -----------------------------------------------------
Harry C. Lee
/s/ CHOTE SOPHONPANICH Director November 25, 1997
- -----------------------------------------------------
Chote Sophonpanich
/s/ DAVID F. CHAVENSON Vice President and Chief Financial November 25, 1997
- ----------------------------------------------------- Officer (principal financial
David F. Chavenson officer and principal accounting
officer)
</TABLE>
II-5
<PAGE> 136
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on the 25th day of November, 1997.
RUTHERFORD-MORAN EXPLORATION
COMPANY
By: /s/ PATRICK R. RUTHERFORD
----------------------------------
Patrick R. Rutherford
President
POWER OF ATTORNEY
Known All Men By These Presents that each person whose signature appears
below constitutes and appoints Patrick R. Rutherford, David F. Chavenson, and
Michael D. McCoy, and each of them, such person's true and lawful
attorneys-in-fact and agents, with full power of substitution and revocation,
for such person and in such person's name, place and stead, in any and all
amendments (including post-effective amendments to this Registration Statement)
and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his substitute of substitutes, may lawfully do or cause
to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <C>
/s/ JOHN A. MORAN Chairman of the Board November 25, 1997
- -----------------------------------------------------
John A. Moran
/s/ PATRICK R. RUTHERFORD President and Director (principal November 25, 1997
- ----------------------------------------------------- executive officer)
Patrick R. Rutherford
/s/ MICHAEL D. MCCOY Vice President and Secretary and November 25, 1997
- ----------------------------------------------------- Director
Michael D. McCoy
/s/ DAVID F. CHAVENSON Treasurer and Director (principal November 25, 1997
- ----------------------------------------------------- financial officer and principal
David F. Chavenson accounting officer)
</TABLE>
II-6
<PAGE> 137
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on the 25th day of November, 1997.
THAI ROMO HOLDINGS, INC.
By: /s/ PATRICK R. RUTHERFORD
----------------------------------
Patrick R. Rutherford
President
POWER OF ATTORNEY
Known All Men By These Presents that each person whose signature appears
below constitutes and appoints Patrick R. Rutherford, David F. Chavenson, and
Michael D. McCoy, and each of them, such person's true and lawful
attorneys-in-fact and agents, with full power of substitution and revocation,
for such person and in such person's name, place and stead, in any and all
amendments (including post-effective amendments to this Registration Statement)
and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his substitute of substitutes, may lawfully do or cause
to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ JOHN A. MORAN Chairman of the Board November 25, 1997
- -----------------------------------------------------
John A. Moran
/s/ PATRICK R. RUTHERFORD President and Director (principal November 25, 1997
- ----------------------------------------------------- executive officer)
Patrick R. Rutherford
/s/ MICHAEL D. MCCOY Vice President and Secretary and November 25, 1997
- ----------------------------------------------------- Director
Michael D. McCoy
/s/ DAVID F. CHAVENSON Treasurer and Director (principal November 25, 1997
- ----------------------------------------------------- financial officer and principal
David F. Chavenson accounting officer)
</TABLE>
II-7
<PAGE> 138
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on the 25th day of November, 1997.
THAI ROMO LIMITED
By: /s/ PATRICK R. RUTHERFORD
----------------------------------
Patrick R. Rutherford
Director
POWER OF ATTORNEY
Known All Men By These Presents that each person whose signature appears
below constitutes and appoints Patrick R. Rutherford, David F. Chavenson, and
Michael D. McCoy, and each of them, such person's true and lawful
attorneys-in-fact and agents, with full power of substitution and revocation,
for such person and in such person's name, place and stead, in any and all
amendments (including post-effective amendments to this Registration Statement)
and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his substitute of substitutes, may lawfully do or cause
to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <C>
/s/ PATRICK R. RUTHERFORD Director November 25, 1997
- ----------------------------------------------------- (principal executive
Patrick R. Rutherford officer)
/s/ JOHN A. MORAN Director November 25, 1997
- -----------------------------------------------------
John A. Moran
/s/ DAVID F. CHAVENSON Director November 25, 1997
- ----------------------------------------------------- principal financial officer
David F. Chavenson and principal accounting
officer)
/s/ MICHAEL D. MCCOY Director November 25, 1997
- -----------------------------------------------------
Michael D. McCoy
</TABLE>
II-8
<PAGE> 139
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
3.1** -- Restated Certificate of Incorporation of Rutherford-Moran
Oil Corporation
3.2** -- Bylaws of Rutherford-Moran Oil Corporation dated April 1,
1996
3.3* -- Certificate of Incorporation of Rutherford-Moran
Exploration Company
3.4* -- Bylaws of Rutherford-Moran Exploration Company
3.5* -- Certificate of Incorporation of Thai Romo Holdings, Inc.
3.6* -- Bylaws of Thai Romo Holdings, Inc.
3.7* -- Articles of Association of Thai Romo Limited
4.1*** -- Indenture, dated as of September 29, 1997, between the
Registrant and Bank of Montreal Trust Company
4.2*** -- Form of Note (contained in Exhibit 1 to Rule
144A/Regulation S Appendix of the Indenture filed as
Exhibit 4.1 hereto).
4.3*** -- Registration Rights Agreement, dated as of September 29,
1997, between the Registrant and the Initial Purchasers
5.1* -- Opinion of Hughes & Luce, L.L.P.
10.1** -- Ministry of Industry Petroleum Concession dated August 1,
1991 awarded to Thai Romo, Thaipo and Maersk Oil.
10.2** -- Ministry of Industry Supplementary Petroleum Concession
(No. 1) to Petroleum Concession No. 1/2534/36 dated March
6, 1992, awarded to Maersk Oil (Thailand) Ltd. and Thaipo
Limited and Thai Romo Limited.
10.3** -- Ministry of Industry Supplementary Petroleum Concession
(No. 2) to Petroleum Concession No. 1/2534/36 dated
September 4, 1995, awarded to Thaipo Limited and Thai
Romo Limited.
10.4** -- Joint Operating Agreement effective as of March 3, 1995
among Thai Romo Limited, Thaipo Limited and The
Sophonpanich Co., Ltd.
10.5** -- Joint Operating Agreement dated August 1, 1991 among Thai
Romo, Thaipo, Maersk Oil and Sophonpanich
10.6** -- Gas Sales Agreement dated November 7, 1995 between
Petroleum Authority of Thailand, Thai Romo, Thaipo, and
Sophonpanich
10.7* -- First Amendment to the Gas Sales Agreement dated November
12, 1997 between Petroleum Authority of Thailand, B8/32
Partners Limited, Thaipo Limited, Thai Romo Limited and
Palang Sophon Limited
10.8** -- Bareboat Charter Agreement dated February 9, 1996 between
Tantawan Production B.V. and Tantawan Services, L.L.C.
10.9** -- Operating Agreement between SBM Marine Services Thailand
Ltd. and Tanatawan Services, L.L.C. dated February 9,
1996.
10.10** -- Guaranty and Indemnity Agreement dated February 9, 1996,
by Thai Romo to Tantawan Production B.V.
10.11** -- Guaranty and Indemnity Agreement dated February 9, 1996,
by Thai Romo to SBM Marine Services Thailand Ltd.
10.12** -- 1996 Key Employee Stock Plan (and form of option and
stock agreements).
10.13** -- 1996 Non-Employee Director Stock Option Plan (and form of
option agreement).
</TABLE>
<PAGE> 140
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.14** -- $150,000,000 Revolving Credit Agreement dated as of
September 20, 1996 with the Chase Manhattan Bank as
Lender and Agent.
12.1* -- Computation of Deficit of Loss to Fixed Charges.
21.1* -- Subsidiaries of the Registrant.
23.1* -- Consent of Hughes & Luce, L.L.P. (contained in its
opinion filed as Exhibit 5.1 hereto).
23.2* -- Consent of KPMG Peat Marwick LLP
23.3* -- Consent of Ryder Scott Company
24.1* -- Power of Attorney (appearing on Signature Page).
25.1* -- Form T-1 Statement of Eligibility of Trustee.
99.1* -- Form of Letter of Transmittal and Notice of Guaranteed
Delivery.
</TABLE>
- ---------------
* Filed herewith.
** Incorporated by reference from the Company's Registration Statement on Form
S-1, as amended (File No. 333-4122).
*** Incorporated by reference from the Company's Form 10-Q (File No. 002-20849).
<PAGE> 1
EXHIBIT 3.3
CERTIFICATE OF INCORPORATION
RUTHERFORD-MORAN EXPLORATION COMPANY
First: The name of the Corporation is Rutherford-Moran Exploration Company.
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 nature of the business and purpose to be conducted or promoted
by 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 total number of shares of stock that the Corporation shall
have authority to issue is 10,000 shares of Common Stock, of the par value of
$.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 names and mailing addresses of the persons who are to serve
as directors until the first annual meeting of stockholders or until their
successors are elected and qualify are:
<TABLE>
<S> <C>
John A. Moran 5 Greenway Plaza, Suite 220
Houston, Texas 77046
Patrick R. Rutherford 5 Greenway Plaza, Suite 220
Houston, Texas 77046
Michael D. McCoy 5 Greenway Plaza, Suite 220
Houston, Texas 77046
David F. Chavenson 5 Greenway Plaza, Suite 220
Houston, Texas 77046
</TABLE>
Eighth:
(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
<PAGE> 2
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 or officer to the
full extent permitted by Delaware law.
Ninth: 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.
Tenth: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or 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 3rd day of July, 1996.
/s/ KAILAN M. NIEMEYER
---------------------------
Kailan M. Niemeyer
-2-
<PAGE> 3
Pursuant to the provisions of Section 252(c) of the Delaware General
Corporation Law (the "DGCL"), the undersigned corporation submits the following
Certificate of Merger for the purpose of effecting a merger under the DGCL.
1. The name and state or jurisdiction of incorporation of each of the
constituent corporations is as follows:
Name of Corporation State of Incorporation
------------------- ----------------------
Rutherford-Moran Exploration Company Texas
Rutherford-Moran Exploration Company Delaware
2. An agreement of merger has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations in accordance
with Section 252(c) of the DGCL.
3. The surviving corporation is Rutherford-Moran Exploration Company, a
Delaware corporation.
4. The certificate of incorporation of the surviving corporation shall
be its certificate of incorporation.
5. The executed agreement of merger is on file at the principal place of
business of the surviving corporation, located at 5 Greenway Plaza, Suite 220,
Houston, Texas 77046.
6. A copy of the agreement of merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any constituent
corporation.
7. This merger shall be effective when the Certificate of Merger shall
have been filed with the Secretary of State of the State of Delaware in
accordance with the provisions of the DGCL.
Dated this 7th day of August, 1996.
SURVIVING CORPORATION
RUTHERFORD-MORAN EXPLORATION COMPANY
a Delaware corporation
By: /s/ MICHAEL D. MCCOY
---------------------------------
Michael D. McCoy
Vice President
<PAGE> 1
EXHIBIT 3.4
BYLAWS
OF
RUTHERFORD-MORAN EXPLORATION COMPANY
Adopted on July 5, 1996
ARTICLE I
OFFICES
SECTION 1.01. Registered Office. The registered office of the
corporation in the State of Delaware shall be in the City of Wilmington, County
of New Castle, and the name of its registered agent shall be The Corporation
Trust Company.
SECTION 1.02. Other Offices. The corporation may also have offices
at such other places both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. Place of Meeting. All meetings of stockholders for
the election of directors shall be held at such place, either within or without
the State of Delaware, as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting.
SECTION 2.02. Annual Meeting. The annual meeting of stockholders
shall be held at such date and time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting.
SECTION 2.03. Voting List. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least 10 days before every
meeting of stockholders, a complete list of the stockholders entitled to vote
at the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least 10 days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice, or if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
<PAGE> 2
SECTION 2.04. Special Meeting. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chairman of the Board or by
the President of the corporation or by the Board of Directors or by written
order of a majority of the directors and shall be called by the President or
the Secretary at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding
and entitled to vote. Such request shall state the purposes of the proposed
meeting. The Chairman of the Board or the President of the corporation or
directors so calling, or the stockholders so requesting, any such meeting shall
fix the time and any place, either within or without the State of Delaware, as
the place for holding such meeting.
SECTION 2.05. Notice of Meeting. Written notice of the annual, and
each special meeting of stockholders, stating the time, place, and purpose or
purposes thereof, shall be given to each stockholder entitled to vote thereat,
not less than 10 nor more than 60 days before the meeting.
SECTION 2.06. Quorum. The holders of a majority of the shares of the
corporation's capital stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
at any meeting of stockholders for the transaction of business, except as
otherwise provided by statute or by the Certificate of Incorporation.
Notwithstanding the other provisions of the Certificate of Incorporation or
these bylaws, the holders of a majority of the shares of the corporation's
capital stock entitled to vote thereat, present in person or represented by
proxy, whether or not a quorum is present, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. If the adjournment is
for more than 30 days, or if after the adjournment a new record date is fixed
for the stockholder of record entitled to vote at the meeting. At such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified.
SECTION 2.07. Voting. When a quorum is present at any meeting of the
stockholders, the vote of the holders of a majority of the shares of the
corporation's capital stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of the statutes, of
the Certificate of Incorporation or of these bylaws, a different vote is
required, in which case such stockholder having the right to vote shall be
entitled to vote in person, or by proxy appointed by an instrument in writing
subscribed by such stockholder, bearing a date not more than three years prior
to voting, unless such instrument provides for a longer period, and filed with
the Secretary of the corporation before, or at the time of, the meeting. If
such instrument shall designate two or more persons to act as proxies, unless
such instrument shall provide the contrary, a majority of such persons present
at any meeting at which their powers thereunder are to be exercised shall have
and may exercise all the powers of voting or giving consents thereby conferred,
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or if only one be present, then such powers may be exercised by that one; or,
if an even number attend and a majority do not agree on any particular issue,
each proxy so attending shall be entitled to exercise such powers in respect of
the same portion of the shares as he is of the proxies representing such shares.
SECTION 2.08. Consent of Stockholders. Whenever the vote of
stockholders at a meeting thereof is required or permitted to be taken for or
in connection with any corporate action by any provision of the statutes, the
meeting and vote of stockholders may be dispensed with if all the stockholders
who would have been entitled to vote upon the action if such meeting were held
shall consent in writing to such corporate action being taken; or on the
written consent of the holders of shares of the corporations's capital stock
having not less than the minimum percentage of the vote required by statute for
the proposed corporate action, and provided that prompt notice must be given to
all stockholders of the taking of corporate action without a meeting and by less
than unanimous written consent.
SECTION 2.09. Voting of Stock of Certain Holders. Shares of the
corporation's capital stock standing in the name of another corporation,
domestic or foreign, may be voted by such officer, agent, or proxy as the
bylaws of such corporation may prescribe, or in the absence of such provision,
as the Board of Directors of such corporation may determine. Shares standing in
the name of a deceased person may be voted by the executor administrator of
such deceased person, either in person or by proxy. Shares standing in the name
of a guardian, conservator, or trustee may be voted by such fiduciary, either
in person or by proxy, but no such fiduciary shall be entitled to vote shares
held in such fiduciary capacity without a transfer of such shares into the name
of such fiduciary. Shares standing in the name of a receiver may be voted by
such receiver. A stockholder whose shares are pledged shall be entitled to vote
such, shares unless in the transfer by the pledgor on the books of the
corporation, he has expressly empowered the pledgee to vote thereon, in which
case only the pledgee, or his proxy, may represent the stock and vote thereon.
SECTION 2.10. Treasury Stock. The corporation shall not vote,
directly or indirectly, shares of its own capital stock owned by it; and such
shares shall not be counted in determining the total number of outstanding
shares of the corporation's capital stock.
SECTION 2.11 Fixing Record Date. The Board of Directors may fix in
advance a date, which shall not be more than 60 days nor less than 10 days
preceding the date of any meeting of stockholders, nor more than 60 days
preceding the date for payment of any dividend or distribution, or the date for
the allotment of rights, or the date when any change, or conversion or exchange
of capital stock shall go into effect, or a date in connection with obtaining a
consent, as a record date for the determination of the stockholders entitled to
notice of, and to vote at, any such meeting and any adjournment thereof, or
entitled to receive payment of any such dividend or distribution, or to receive
any such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to give such consent, and
in such case such stockholders and only such stockholders as
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shall be stockholders of record on the date so fixed, shall be entitled to such
notice of, and to vote at, any such meeting and any adjournment thereof, or to
receive payment of such dividend or distribution, or to receive such allotment
of rights, or to exercise such rights, or to give such consent, as the case may
be, notwithstanding any transfer of any stock on the books of the corporation
after any such record date fixed as aforesaid.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. Powers. The business and affairs of the corporation
shall be managed by its Board of Directors, which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the Certificate of Incorporation or by these bylaws directed or required
to be exercised or done by the stockholders.
SECTION 3.02. Number, Election and Term. The number of directors
that shall constitute the whole Board of Directors shall be not less than one.
Such number of directors shall from time to time be fixed and determined by the
directors and shall be set forth in the notice of any meeting of stockholders
held for the purpose of electing directors. The directors shall be elected at
the annual meeting of stockholders, except as provided in Section 3.03, and
each director elected shall hold office until his successor shall be elected
and shall qualify. Directors need not be residents of Delaware or stockholders
of the corporation.
SECTION 3.03. Vacancies, Additional Directors, and Removal From
Office. If any vacancy occurs in the Board of Directors caused by death,
resignation, retirement, disqualification, or removal from office of any
director, or otherwise, or if any new directorship is created by an increase
in the authorized number of directors, a majority of the directors then in
office, though less than a quorum, or a sole remaining director, may choose a
successor or fill the newly created directorship; and a director so chosen
shall hold office until the next election and until his successor shall be duly
elected and shall qualify, unless sooner displaced. Any director may be
removed either for or without case at any special meeting of stockholders duly
called and held for such purpose.
SECTION 3.04. Regular Meeting. A regular meeting of the Board of
Directors shall be held each year, without other notice than this bylaw, at the
place of, and immediately following, the annual meeting of stockholders; and
other regular meetings of the Board of Directors shall be held each year, at
such time and place as the Board of Directors may provide, by resolution,
either within or without the State of Delaware, without other notice than such
resolution.
SECTION 3.05. Special Meeting. A special meeting of the Board of
Directors may be called by the Chairman of the Board of Directors or by the
President of the corporation and shall be called by the Secretary on the
written request of any two directors. The Chairman of President so calling, or
the directors so requesting,
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any such meeting shall fix the time and any place, either within or without the
State of Delaware, as the place for holding such meeting.
SECTION 3.06. Notice of Special Meeting. Written notice of special
meetings of the Board of Directors shall be given to each director at least 48
hours prior to the time of such meeting. Any director may waive notice of any
meeting. The attendance of a director at any meeting shall constitute a waiver
of notice of such meeting, except where a director attends a meeting for the
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened. Neither the business to be transacted at, or
the purpose of, any special meeting of the Board of Directors need be specified
in the notice or waiver of notice of such meeting, except that notice shall be
given of any proposed amendment to the bylaws if it is to be adopted at any
special meeting or with respect to any other matter where notice is required by
statute.
SECTION 3.07. Quorum. A majority of the Board of Directors shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, and the act of a majority of the directors present at any meeting
of the Board of there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by statute, by the Certificate
of Incorporation or by these bylaws. If a quorum shall not be present at any
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 3.08. Action Without Meeting. Unless otherwise restricted by
the Certificate of Incorporation or these bylaws, any action required or
permitted to be taken any meeting of the Board of Directors, or of any
committee thereof as provided in Article IV of these bylaws,may be taken
without a meeting, if a written consent thereto is signed by all members of the
Board of Directors or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board of Directors or
such committee.
SECTION 3.09 Compensation. Directors, as such, shall not be
entitled to any stated salary for their services unless voted by the
stockholders or the Board of Directors; but by resolution of the Board of
Directors, a fixed sum and expenses of attendance, if any, may be allowed for
attendance at each regular or special meeting of the Board of Directors or any
meeting of a committee of directors. No provision of these bylaws shall be
construed to preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEE OF DIRECTORS
SECTION 4.01. Designation, Powers and Name. The Board of Directors
may, by resolution passed by a majority of the whole Board of Directors,
designate one or more committees, including, if they shall so determine, an
Executive
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Committee, each such committee to consist of two or more of the directors of
the corporation. The committee shall have and may exercise such of the powers
of the Board of Directors in the management of the business and affairs of the
corporation as may be provided in such resolution. The committee may authorize
the seal of the corporation to be affixed to all papers that may require it.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of such committee. In the absence or disqualification of any member of
such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute
a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified member. Such
committee or committees shall have such name or names and such limitations of
authority as may be determined from time to time by resolution adopted by the
Board of Directors.
SECTION 4.02. Minutes. Each committee of directors shall keep
regular minutes of its proceedings and report the same to the Board of
Directors when required.
SECTION 4.03. Compensation. Members of special or standing
committees may be allowed compensation for attending committee meetings, if the
Board of Directors shall so determine.
ARTICLE V
NOTICE
SECTION 5.01. Methods of Giving Notice. Whenever under the
provisions of applicable statutes, the Certificate of Incorporation or these
bylaws, notice is required to be given to any director, member of any
committee, or stockholder, such notice shall be in writing and delivered
personally or mailed to such director, member, or stockholder; provided that in
the case of a director or a member of any committee such notice may given orally
or by telephone or telegram. If mailed, notice to a director, member of a
committee, or stockholder shall be deemed to be given when deposited in the
United States mail first class in a sealed envelope, with postage thereon
prepaid, addressed, in the case of a stockholder, to the stockholder at the
stockholder's address as it appears on the records of the corporation or, in
the case of a director or a member of a committee, to such person at his
business address. If sent by telegraph, notice to a director or member of a
committee shall be deemed to be given when the telegram, so addressed, is
delivered to the telegraph company.
SECTION 5.02. Written Waiver. Whenever any notice is required to be
given under the provisions of an applicable statute, the Certificate of
Incorporation, or these bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
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ARTICLE VI
OFFICERS
SECTION 6.01. Officers. The officers of the corporation shall be a
President, one or more Vice Presidents, any one or more of which may be
designated Executive Vice President or Senior Vice President, a Secretary and a
Treasurer. The Board of Directors may also elect a Chairman of the Board and
appoint such other officers and agents, including Assistant Vice Presidents,
Assistant Secretaries, and Assistant Treasurers, in each case as the Board of
Directors shall deem necessary, who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined by
the Board. Any two or more offices may be held by the same person. None of the
other officers need be a director, and none of the officers need be a
stockholder of the corporation.
SECTION 6.02. Election and Term of Office. The officers of the
corporation shall be elected annually by the Board of Directors at its first
regular meeting held after the annual meeting of stockholders or as soon
thereafter as conveniently possible. Each officer shall hold office until his
successor shall have been chosen and shall have qualified or until his death or
the effective date of his resignation or removal, or until he shall cease to be
a director in the case of the Chairman.
SECTION 6.03. Removal and Resignation. Any officer or agent elected
or appointed by the Board of Directors may be removed without cause by the
affirmative vote of a majority of the Board of Directors whenever, in its
judgement, the best interests of the corporation shall be served thereby, but
such removal shall be without prejudice to the contractual rights, if any, of
the person so removed. Any officer may resign at any time by giving written
notice to the corporation. Any such resignation shall take effect at the date
of the receipt of such notice or at any later time specified therein, and
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
SECTION 6.04. Vacancies. Any vacancy occurring in any office of the
corporation by death, resignation, removal, or otherwise, may be filled by the
Board of Directors for the unexpired portion of the term.
SECTION 6.05. Salaries. The salaries of all officers and agents of
the corporation shall be fixed by the Board of Directors or pursuant to its
direction; and no officer shall be prevented from receiving such salary by
reason of his also being a director.
SECTION 6.06. Chairman of the Board. The Chairman of the Board, if
one is elected, shall preside at all meetings of the Board of Directors and
shall have such other powers and duties as may from time to time be prescribed
by the Board of Directors upon written directions given to him pursuant to
resolutions duly adopted by the Board of Directors.
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SECTION 6.07 President. The President shall be the chief executive
officer of the corporation and, subject to the control of the Board of
Directors, shall in general supervise and control the business and affairs of
the corporation. In the absence of the Chairman of the Board, the President
shall preside at all meetings of the Board of Directors and of the
stockholders. He may also preside at any such meeting attended by the Chairman
if he is so designated by the Chairman. He shall have the power to appoint and
remove subordinate officers, agents and employees, except those elected or
appointed by the Board of Directors. The President shall keep the Board of
Directors fully informed and shall consult them concerning the business of the
corporation. He may sign with the Secretary or any other officer of the
corporation thereunto authorized by the Board of Directors, certificates for
shares of the corporation and any deeds, bonds, mortgages, contracts, checks,
notes, drafts, or other instruments that the Board of Directors has authorized
to be executed, except in cases where the signing and execution thereof has
been expressly delegated by these bylaws or by the Board of Directors to some
other officer or agent of the corporation, or shall be required by law to be
otherwise executed. He shall vote, or give a proxy to any other officer of the
corporation to vote, all shares of stock of any other corporation standing in
the name of the corporation and in general he shall perform all other duties
normally incident to the office of President and such other duties as may be
prescribed by the stockholders or the Board of Directors from time to time.
SECTION 6.08 Vice Presidents. In the absence of the President, or
in the event of his inability or refusal to act, the Executive Vice President
(or in the event there shall be no Vice President designated Executive Vice
President, any Vice President designated by the Board) shall perform the duties
and exercise the powers of the President. Any Vice President may sign, with the
Secretary or Assistant Secretary, certificates for shares of the corporation.
The Vice Presidents shall perform such other duties as from time to time may be
assigned to them by the President, the Board of Directors or the Executive
Committee.
SECTION 6.09 Secretary. The Secretary shall (a) keep the minutes of
the meetings of the stockholders, the Board of Directors and committees of
directors; (b) see that all notices are duly given in accordance with the
provisions of these bylaws and as required by law; (c) be custodian of the
corporate records and of the seal of the corporation, and see that the seal of
the corporation or a facsimile thereof is affixed to all certificates for
shares prior to the issue thereof and to all documents, the execution of which
on behalf of the corporation under its seal is duly authorized in accordance
with the provisions of these bylaws; (d) keep or cause to be kept a register of
the post office address of each stockholder which shall be furnished by such
stockholder; (e) sign with the President, or an Executive Vice President or
Vice President, certificates for shares of the corporation, the issue of which
shall have been authorized by resolution of the Board of Directors; (f) have
general charge of the stock transfer books of the corporation; (g) in general,
perform all duties normally incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the President, the Board
of Directors or the Executive Committee.
Section 6.10 Treasurer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties in such sum
and
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with such surety or sureties as the Board of Directors shall determine. He
shall (a) have charge and custody of and be responsible for all funds and
securities of the corporation; (b) receive and give receipts for moneys due and
payable to the corporation from any source whatsoever and deposit all such
moneys in the name of the corporation from any source whatsoever and deposit
all such moneys in the name of the corporation in such banks, trust companies,
or other depositories as shall be selected in accordance with the provisions of
Section 7.03 of these bylaws; (c) prepare, or cause to be prepared, for
submission at each regular meeting of the Board of Directors, at each annual
meeting of the stockholders, and at such other times as may be required by the
Board of Directors, the President or the Executive Committee, a statement of
financial condition of the corporation in such details as may be required; and
(d) in general, perform all the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned by him by the President,
the Board of Directors or the Executive Committee.
SECTION 6.11. Assistant Secretary and Treasurer. The Assistant
Secretaries and Assistant Treasurers shall, in general, perform such duties as
shall be assigned to them by the Secretary or the Treasurer, respectively, or
by the President, the Board of Directors, or the Executive Committee. The
Assistant Secretaries and Assistant Treasurers shall, in the absence of the
Secretary or Treasurer, respectively, perform all functions and duties which
such absent officers may delegate, but such delegation shall not relieve the
absent officer from the responsibilities and liabilities of his office. The
Assistant Secretaries may sign, with the President or a Vice President,
certificates for shares of the corporation, the issue of which shall have been
authorized by a resolution of the Board of Directors. The Assistant Treasurers
shall respectively, if required by the Board of Directors, give bonds for the
faithful discharge of their duties in such sums and with such sureties as the
Board of Directors shall determine.
ARTICLE VII
CONTRACTS, CHECKS AND DEPOSITS
SECTION 7.01. Contracts. Subject to the provisions of Section 6.01,
the Board of Directors may authorize any officer, officers, agent, or agents,
to enter into any contract or execute and deliver any instrument in the name of
and on behalf of the corporation, and such authority may be general or confined
to specific instances.
SECTION 7.02. Checks. All checks, demands, drafts, or other orders
for the payment of money, notes, or other evidences of indebtedness issued in
the name of the corporation, shall be signed by such officer or officers or such
agent or agents of the corporation, and in such manner, as shall be determined
by the Board of Directors.
SECTION 7.03. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such bans, trust companies, or other depositories as the Board of Directors
may select.
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ARTICLE VIII
CERTIFICATES OF STOCK
SECTION 8.01. Issuance. Each stockholder of this corporation shall be
entitled to a certificate or certificates showing the number of shares of
capital stock registered in his name on the books of the corporation. The
certificates shall be in such form as may be determined by the Board of
Directors, shall be issued in numerical order and shall be entered in the books
of the corporation as they are issued. They shall exhibit the holder's name and
number of shares and shall be signed by the President or a Vice President and
by the Secretary or an Assistant Secretary. If any certificate is countersigned
(1) by a transfer agent other than the corporation or any employee of the
corporation, or (2) by a registrar other than the corporation or any employee
of the corporation, any other signature on the certificate may be a facsimile.
If the corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the designations, preferences, and relative
participating, optional, or other special rights of each class of stock or
series thereof and the qualifications, limitations, or restrictions of such
preferences and rights shall be set forth in full or summarized on the face or
back of the certificate which the corporation shall issue to represent such
class of stock; provided that, except as otherwise provided by statute, in lieu
of the foregoing requirements there may be set forth on the face or back of the
certificate which the corporation shall issue to represent such class or series
of stock, a statement that the corporation will furnish to each stockholder who
so requests the designations, preferences and relative, participating, optional
or other special rights of each class of stock or series thereof and the
qualifications, limitations, or restrictions of such preferences and rights.
All certificates surrendered to the corporation for transfer shall be canceled
and no new certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and canceled, except that in the
case of a lost, stolen, destroyed, or mutilated certificate a new one may be
issued therefor upon such terms and with such indemnity, if any, to the
corporation as the Board of Directors may prescribe. Certificates shall not be
issued representing fractional shares of stock.
SECTION 8.02. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require (1) the owner of such lost, stolen, or destroyed certificate or
certificates, of his legal representative, to advertise the same in such manner
as it shall require, (2) such owner to give the corporation a bond in such sum
as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate or certificates alleged to have been
lost, stolen, or destroyed, or (3) both.
SECTION 8.03. Transfers. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
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accompanied by proper evidence of succession, assignment, or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate, and record the
transaction upon its books. Transfers of shares shall be made only on the
books of the corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney and filed with the Secretary of the
corporation or the Transfer Agent.
SECTION 8.04. Registered Stockholders. The corporation shall be entitled
to treat the holder of record of any share or shares of the corporation's
capital stock as the holder in fact thereof and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of the State of
Delaware.
ARTICLE IX
DIVIDENDS
SECTION 9.01. Declaration. Dividends with respect to the shares of the
corporation's capital stock, subject to the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of Directors at any regular
or special meeting, pursuant to applicable law. Dividends may be paid in cash,
in property, or in shares of capital stock, subject to the provisions of the
Certificate of Incorporation.
SECTION 9.02. Reserve. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the Board of Directors from time to time, in their absolute discretion,
think for repairing or maintaining any property of the corporation, or for such
other purpose as the Board of Directors shall think conducive to the interest
of the corporation, and the Board of Directors may modify or abolish any such
reserve in the manner in which it was created.
ARTICLE X
INDEMNIFICATION
SECTION 10.01. Third Party Actions. The corporation shall indemnify any
director or officer of the corporation, and may indemnify any other person, who
was or is a party or is threatened to be made a party to any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a director, officer,
employee, or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses (including attorneys' fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action,
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suit, or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit, or
proceeding by judgment, order, settlement, or conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
SECTION 10.02. Actions by or in the Right of the Corporation. The
corporation shall indemnify any director or officer and may indemnify any other
person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust, or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue, or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnify for such expenses as
the Court of Chancery or such other court shall deem proper.
SECTION 10.03. Mandatory Indemnification. To the extent that a
director, officer, employee, or agent of the corporation has been successful on
the merits or otherwise in defense of any action, suit, or proceeding referred
to in Sections 10.01 and 10.02, or in defense of any claim, issue, or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection herewith.
SECTION 10.04. Determination of Conduct. The determination that a
director, officer, employee, or agent has met the applicable standard of
conduct set forth in Sections 10.01 and 10.02 (unless indemnification is
ordered by a court) shall be made (1) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit, or proceeding, or (2) if such quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
SECTION 10.05 Payment of Expenses in Advance. Expenses incurred
in defending a civil or criminal action, suit, or proceeding shall be paid by
the corporation in advance of the final disposition of such action, suit, or
proceeding upon
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receipt of an undertaking by or on behalf of the director, officer, employee,
or agent to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the corporation as authorized in this Article
X.
SECTION 10.06. Indemnify Not Exclusive. The indemnification and
advancement of expenses provided or granted hereunder shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Certificate of Incorporation,
any other bylaw, agreement, vote of stockholders, or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
SECTION 10.07 Definitions. For purposes of this Article X.
(a) "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger that, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or
was a director, officer, employee, or agent of such constituent corporation,
or is or was serving at the request of such constituent corporation as a
director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise, shall stand in the same position
under this Article X with respect to the resulting or surviving corporation
as he would have with respect to such constituent corporation if its
separate existence had continued;
(b) "other enterprises" shall include employee benefit plans;
(c) "fines" shall include any excise taxes assessed on a person
with respect to any employee benefit plan;
(d) "serving at the request of the corporation" shall include any
service as a director, officer, employee, or agent of the corporation that
imposes duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its
participants or beneficiaries; and
(e) a person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and beneficiaries of any
employee benefit plan shall be deemed to have acted in a manner "not opposed
to the best interests of the corporation" as referred to in this Article X.
SECTION 10.08. Continuation of Indemnity. The indemnification and
advancement of expenses provided or granted hereunder shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be
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a director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Seal. The corporate seal, if one is authorized by the
Board of Directors, shall have inscribed thereon the name of the corporation,
and the words "Corporate Seal, Delaware." The seal may be used by causing it or
a facsimile thereof to be impressed or affixed or otherwise reproduced.
SECTION 11.02 Books. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at the offices of the corporation in Houston, Texas, or at such other
place or places as may be designated from time to time by the Board of
Directors.
ARTICLE XIII
AMENDMENT
These bylaws may be altered, amended, or repealed by a majority of the
number of directors then constituting the Board of Directors at any regular
meeting of the Board of Directors without prior notice, or at any special
meeting of the Board of Directors if notice of such alteration, amendment, or
repeal be contained in the notice of such special meeting.
<PAGE> 1
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.
<PAGE> 2
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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<PAGE> 3
Name Mailing Address
---- ---------------
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
--------------------------------
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
---------------------------
David F. Chavenson
Treasurer
<PAGE> 1
EXHIBIT 3.6
BYLAWS
OF
THAI ROMO HOLDINGS, INC.
Adopted on May 28, 1996
ARTICLE I
OFFICES
SECTION 1.01. Registered Office. The registered office of the
corporation in the State of Delaware shall be in the City of Wilmington, County
of New Castle, and the name of its registered agent shall be The Corporation
Trust Company.
SECTION 1.02. Other Offices. The corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine or the business of the
corporation may require.
ARTICLE III
MEETINGS OF STOCKHOLDERS
SECTION 2.01. Place of Meeting. All meetings of stockholders
for the election of directors shall be held at such place, either within or
without the State of Delaware, as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting.
SECTION 2.02. Annual Meeting. The annual meeting of
stockholders shall be held at such date and time as shall be designated from
time to time by the Board of Directors and stated in the notice of the meeting.
SECTION 2.03. Voting List. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least 10 days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least 10 days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice, or if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
<PAGE> 2
SECTION 2.04. Special Meeting. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the Chairman
of the Board or by the President of the corporation or by the Board of
Directors or by written order of a majority of the directors and shall be
called by the President or the Secretary at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purposes of the proposed meeting. The Chairman of the Board or the
President of the corporation or directors so calling, or the stockholders so
requesting, any such meeting shall fix the time and any place, either within or
without the State of Delaware, as the place for holding such meeting.
SECTION 2.05. Notice of Meeting. Written notice of the annual,
and each special meeting of stockholders, stating the time, place, and purpose
or purposes thereof, shall be given to each stockholder entitled to vote
thereat, not less than 10 nor more than 60 days before the meeting.
SECTION 2.06. Quorum. The holders of a majority of the shares
of the corporation's capital stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
at any meeting of stockholders for the transaction of business, except as
otherwise provided by statute or by the Certificate of Incorporation.
Notwithstanding the other provisions of the Certificate of Incorporation or
these bylaws, the holders of a majority of the shares of the corporation's
capital stock entitled to vote thereat, present in person or represented by
proxy, whether or not a quorum is present, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. If the adjournment is
for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
SECTION 2.07. Voting. When a quorum is present at any meeting
of the stockholders, the vote of the holders of a majority of the shares of the
corporation's capital stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of the statutes, of
the Certificate of Incorporation or of these bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question. Every stockholder having the right to vote shall be
entitled to vote in person, or by proxy appointed by an instrument in writing
subscribed by such stockholder, bearing a date not more than three years prior
to voting, unless such instrument provides for a longer period, and filed with
the Secretary of the corporation before, or at the time of, the meeting. If
such instrument shall designate two or more persons to act as proxies, unless
such instrument shall provide the contrary, a majority of such persons present
at any meeting at which their powers thereunder are to be exercised shall have
and may exercise all the powers of voting or giving consents thereby conferred,
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or if only one be present, then such powers may be exercised by that one; or,
if an even number attend and a majority do not agree on any particular issue,
each proxy so attending shall be entitled to exercise such powers in respect of
the same portion of the shares as he is of the proxies representing such
shares.
SECTION 2.08. Consent of Stockholders. Whenever the vote of
stockholders at a meeting thereof is required or permitted to be taken for or
in connection with any corporate action by any provision of the statutes, the
meeting and vote of stockholders may be dispensed with if all the stockholders
who would have been entitled to vote upon the action if such meeting were held
shall consent in writing to such corporate action being taken; or on the
written consent of the holders of shares of the corporation's capital stock
having not less than the minimum percentage of the vote required by statute for
the proposed corporate action, and provided that prompt notice must be given to
all stockholders of the taking of corporate action without a meeting and by
less than unanimous written consent.
SECTION 2.09. Voting of Stock of Certain Holders. Shares of
the corporation's capital stock standing in the name of another corporation,
domestic or foreign, may be voted by such officer, agent, or proxy as the
bylaws of such corporation may prescribe, or in the absence of such provision,
as the Board of Directors of such corporation may determine. Shares standing in
the name of a deceased person may be voted by the executor or administrator of
such deceased person, either in person or by proxy. Shares standing in the name
of a guardian, conservator, or trustee may be voted by such fiduciary, either
in person or by proxy, but no such fiduciary shall be entitled to vote shares
held in such fiduciary capacity without a transfer of such shares into the name
of such fiduciary. Shares standing in the name of a receiver may be voted by
such receiver. A stockholder whose shares are pledged shall be entitled to vote
such shares, unless in the transfer by the pledgor on the books of the
corporation, he has expressly empowered the pledgee to vote thereon, in which
case only the pledgee, or his proxy, may represent the stock and vote thereon.
SECTION 2.10. Treasury Stock. The corporation shall not
vote, directly or indirectly, shares of its own capital stock owned by it; and
such shares shall not be counted in determining the total number of outstanding
shares of the corporation's capital stock.
SECTION 2.11. Fixing Record Date. The Board of Directors
may fix in advance a date, which shall not be more than 60 days nor less than
10 days preceding the date of any meeting of stockholders, nor more than 60
days preceding the date for payment of any dividend or distribution, or the
date for the allotment of rights, or the date when any change, or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining a consent, as a record date for the determination of the stockholders
entitled to notice of, and to vote at, any such meeting and any adjournment
thereof, or entitled to receive payment of any such dividend or distribution,
or to receive any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock, or to give
such consent, and in such case such stockholders and only such stockholders as
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shall be stockholders of record on the date so fixed, shall be entitled to such
notice of, and to vote at, any such meeting and any adjournment thereof, or to
receive payment of such dividend or distribution, or to receive such allotment
of rights, or to exercise such rights, or to give such consent, as the case may
be, notwithstanding any transfer of any stock on the books of the corporation
after any such record date fixed as aforesaid.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. Powers. The business and affairs of the
corporation shall be managed by its Board of Directors, which may exercise all
such powers of the corporation and do all such lawful acts and things as are
not by statute or by the Certificate of Incorporation or by these bylaws
directed or required to be exercised or done by the stockholders.
SECTION 3.02. Number, Election and Term. The number of
directors that shall constitute the whole Board of Directors shall be not less
than one. Such number of directors shall from time to time be fixed and
determined by the directors and shall be set forth in the notice of any meeting
of stockholders held for the purpose of electing directors. The directors shall
be elected at the annual meeting of stockholders, except as provided in Section
3.03, and each director elected shall hold office until his successor shall be
elected and shall qualify. Directors need not be residents of Delaware or
stockholders of the corporation.
SECTION 3.03. Vacancies, Additional Directors, and Removal
From Office. If any vacancy occurs in the Board of Directors caused by death,
resignation, retirement, disqualification, or removal from office of any
director, or otherwise, or if any new directorship is created by an increase in
the authorized number of directors, a majority of the directors then in office,
though less than a quorum, or a sole remaining director, may choose a successor
or fill the newly created directorship; and a director so chosen shall hold
office until the next election and until his successor shall be duly elected
and shall qualify, unless sooner displaced. Any director may be removed either
for or without cause at any special meeting of stockholders duly called and
held for such purpose.
SECTION 3.04. Regular Meeting. A regular meeting of the Board
of Directors shall be held each year, without other notice than this bylaw, at
the place of, and immediately following, the annual meeting of stockholders;
and other regular meetings of the Board of Directors shall be held each year,
at such time and place as the Board of Directors may provide, by resolution,
either within or without the State of Delaware, without other notice than such
resolution.
SECTION 3.05. Special Meeting. A special meeting of the Board
of Directors may be called by the Chairman of the Board of Directors or by the
President of the corporation and shall be called by the Secretary on the
written request of any two directors. The Chairman or President so calling, or
the directors so requesting,
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any such meeting shall fix the time and any place, either within or without the
State of Delaware, as the place for holding such meeting.
SECTION 3.06. Notice of Special Meeting. Written notice of
special meetings of the Board of Directors shall be given to each director at
least 48 hours prior to the time of such meeting. Any director may waive notice
of any meeting. The attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends a meeting for
the purpose of objecting to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting, except that notice
shall be given of any proposed amendment to the bylaws if it is to be adopted
at any special meeting or with respect to any other matter where notice is
required by statute.
SECTION 3.07. Quorum. A majority of the Board of Directors
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by statute, by the Certificate
of Incorporation or by these bylaws. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 3.08. Action Without Meeting. Unless otherwise
restricted by the Certificate of Incorporation or these bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors, or
of any committee thereof as provided in Article IV of these bylaws, may be
taken without a meeting, if a written consent thereto is signed by all members
of the Board of Directors or of such committee, as the case may be, and such
written consent is filed with the minutes of proceedings of the Board of
Directors or such committee.
SECTION 3.09. Compensation. Directors, as such, shall not be
entitled to any stated salary for their services unless voted by the
stockholders or the Board of Directors; but by resolution of the Board of
Directors, a fixed sum and expenses of attendance, if any, may be allowed for
attendance at each regular or special meeting of the Board of Directors or any
meeting of a committee of directors. No provision of these bylaws shall be
construed to preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEE OF DIRECTORS
SECTION 4.01. Designation, Powers and Name. The Board of
Directors may, by resolution passed by a majority of the whole Board of
Directors, designate one or more committees, including, if they shall so
determine, an Executive
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Committee, each such committee to consist of two or more of the directors of
the corporation. The committee shall have and may exercise such of the powers
of the Board of Directors in the management of the business and affairs of the
corporation as may be provided in such resolution. The committee may authorize
the seal of the corporation to be affixed to all papers that may require it.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of such committee. In the absence or disqualification of any member of
such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute
a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified member. Such
committee or committees shall have such name or names and such limitations of
authority as may be determined from time to time by resolution adopted by the
Board of Directors.
SECTION 4.02. Minutes. Each committee of directors shall keep
regular minutes of its proceedings and report the same to the Board of
Directors when required.
SECTION 4.03. Compensation. Members of special or standing
committees may be allowed compensation for attending committee meetings, if the
Board of Directors shall so determine.
ARTICLE V
NOTICE
SECTION 5.01. Methods of Giving Notice. Whenever under the
provisions of applicable statutes, the Certificate of Incorporation or these
bylaws, notice is required to be given to any director, member of any
committee, or stockholder, such notice shall be in writing and delivered
personally or mailed to such director, member, or stockholder; provided that in
the case of a director or a member of any committee such notice may be given
orally or by telephone or telegram. If mailed, notice to a director, member of
a committee, or stockholder shall be deemed to be given when deposited in the
United States mail first class in a sealed envelope, with postage thereon
prepaid, addressed, in the case of a stockholder, to the stockholder at the
stockholder's address as it appears on the records of the corporation or, in
the case of a director or a member of a committee, to such person at his
business address. If sent by telegraph, notice to a director or member of a
committee shall be deemed to be given when the telegram, so addressed, is
delivered to the telegraph company.
SECTION 5.02. Written Waiver. Whenever any notice is required
to be given under the provisions of an applicable statute, the Certificate of
Incorporation, or these bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
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ARTICLE VI
OFFICERS
SECTION 6.01. Officers. The officers of the corporation shall
be a President, one or more Vice Presidents, any one or more of which may be
designated Executive Vice President or Senior Vice President, a Secretary and a
Treasurer. The Board of Directors may also elect a Chairman of the Board and
appoint such other officers and agents, including Assistant Vice Presidents,
Assistant Secretaries, and Assistant Treasurers, in each case as the Board of
Directors shall deem necessary, who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined by
the Board. Any two or more offices may be held by the same person. None of the
other officers need be a director, and none of the officers need be a
stockholder of the corporation.
SECTION 6.02. Election and Term of Office. The officers of the
corporation shall be elected annually by the Board of Directors at its first
regular meeting held after the annual meeting of stockholders or as soon
thereafter as conveniently possible. Each officer shall hold office until his
successor shall have been chosen and shall have qualified or until his death or
the effective date of his resignation or removal, or until he shall cease to be
a director in the case of the Chairman.
SECTION 6.03. Removal and Resignation. Any officer or agent
elected or appointed by the Board of Directors may be removed without cause by
the affirmative vote of a majority of the Board of Directors whenever, in its
judgment, the best interests of the corporation shall be served thereby, but
such removal shall be without prejudice to the contractual rights, if any, of
the person so removed. Any officer may resign at any time by giving written
notice to the corporation. Any such resignation shall take effect at the date
of the receipt of such notice or at any later time specified therein, and
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
SECTION 6.04. Vacancies. Any vacancy occurring in any office
of the corporation by death, resignation, removal, or otherwise, may be filled
by the Board of Directors for the unexpired portion of the term.
SECTION 6.05. Salaries. The salaries of all officers and
agents of the corporation shall be fixed by the Board of Directors or pursuant
to its direction; and no officer shall be prevented from receiving such salary
by reason of his also being a director.
SECTION 6.06 Chairman of the Board. The Chairman of the Board,
if one is elected, shall preside at all meetings of the Board of Directors and
shall have such other powers and duties as may from time to time be prescribed
by the Board of Directors upon written directions given to him pursuant to
resolutions duly adopted by the Board of Directors.
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SECTION 6.07. President. The President shall be the chief
executive officer of the corporation and, subject to the control of the Board
of Directors, shall in general supervise and control the business and affairs
of the corporation. In the absence of the Chairman of the Board, the President
shall preside at all meetings of the Board of Directors and of the
stockholders. He may also preside at any such meeting attended by the Chairman
if he is so designated by the Chairman. He shall have the power to appoint and
remove subordinate officers, agents and employees, except those elected or
appointed by the Board of Directors. The President shall keep the Board of
Directors fully informed and shall consult them concerning the business of the
corporation. He may sign with the Secretary or any other officer of the
corporation thereunto authorized by the Board of Directors, certificates for
shares of the corporation and any deeds, bonds, mortgages, contracts, checks,
notes, drafts, or other instruments that the Board of Directors has authorized
to be executed, except in cases where the signing and execution thereof has
been expressly delegated by these bylaws or by the Board of Directors to some
other officer or agent of the corporation, or shall be required by law to be
otherwise executed. He shall vote, or give a proxy to any other officer of the
corporation to vote, all shares of stock of any other corporation standing in
the name of the corporation and in general he shall perform all other duties
normally incident to the office of President and such other duties as may be
prescribed by the stockholders or the Board of Directors from time to time.
SECTION 6.08. Vice Presidents. In the absence of the
President, or in the event of his inability or refusal to act, the Executive
Vice President (or in the event there shall be no Vice President designated
Executive Vice President, any Vice President designated by the Board) shall
perform the duties and exercise the powers of the President. Any Vice President
may sign, with the Secretary or Assistant Secretary, certificates for shares of
the corporation. The Vice Presidents shall perform such other duties as from
time to time may be assigned to them by the President, the Board of Directors
or the Executive Committee.
SECTION 6.09. Secretary. The Secretary shall (a) keep the
minutes of the meetings of the stockholders, the Board of Directors and
committees of directors; (b) see that all notices are duly given in accordance
with the provisions of these bylaws and as required by law; (c) be custodian of
the corporate records and of the seal of the corporation, and see that the seal
of the corporation or a facsimile thereof is affixed to all certificates for
shares prior to the issue thereof and to all documents, the execution of which
on behalf of the corporation under its seal is duly authorized in accordance
with the provisions of these bylaws; (d) keep or cause to be kept a register of
the post office address of each stockholder which shall be furnished by such
stockholder; (e) sign with the President, or an Executive Vice President or
Vice President, certificates for shares of the corporation, the issue of which
shall have been authorized by resolution of the Board of Directors; (f) have
general charge of the stock transfer books of the corporation; and (g) in
general, perform all duties normally incident to the office of Secretary and
such other duties as from time to time may be assigned to him by the President,
the Board of Directors or the Executive Committee.
SECTION 6.10. Treasurer. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful discharge of his
duties in such sum and
-8-
<PAGE> 9
with such surety or sureties as the Board of Directors shall determine. He
shall (a) have charge and custody of and be responsible for all funds and
securities of the corporation; (b) receive and give receipts for moneys due and
payable to the corporation from any source whatsoever and deposit all such
moneys in the name of the corporation in such banks, trust companies, or other
depositories as shall be selected in accordance with the provisions of Section
7.03 of these bylaws; (c) prepare, or cause to be prepared, for submission at
each regular meeting of the Board of Directors, at each annual meeting of the
stockholders, and at such other times as may be required by the Board of
Directors, the President or the Executive Committee, a statement of financial
condition of the corporation in such detail as may be required; and (d) in
general, perform all the duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him by the President, the
Board of Directors or the Executive Committee.
SECTION 6.11. Assistant Secretary and Treasurer. The Assistant
Secretaries and Assistant Treasurers shall, in general, perform such duties as
shall be assigned to them by the Secretary or the Treasurer, respectively, or
by the President, the Board of Directors, or the Executive Committee. The
Assistant Secretaries and Assistant Treasurers shall, in the absence of the
Secretary or Treasurer, respectively, perform all functions and duties which
such absent officers may delegate, but such delegation shall not relieve the
absent officer from the responsibilities and liabilities of his office. The
Assistant Secretaries may sign, with the President or a Vice President,
certificates for shares of the corporation, the issue of which shall have been
authorized by a resolution of the Board of Directors. The Assistant Treasurers
shall respectively, if required by the Board of Directors, give bonds for the
faithful discharge of their duties in such sums and with such sureties as the
Board of Directors shall determine.
ARTICLE VIII
CONTRACTS, CHECKS AND DEPOSITS
SECTION 7.01. Contracts. Subject to the provisions of Section
6.01, the Board of Directors may authorize any officer, officers, agent, or
agents, to enter into any contract or execute and deliver any instrument in the
name of and on behalf of the corporation, and such authority may be general or
confined to specific instances.
SECTION 7.02. Checks. All checks, demands, drafts, or other
orders for the payment of money, notes, or other evidences of indebtedness
issued in the name of the corporation, shall be signed by such officer or
officers or such agent or agents of the corporation, and in such manner, as
shall be determined by the Board of Directors.
SECTION 7.03. Deposits. All funds of the corporation not
otherwise employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies, or other depositories as the Board
of Directors may select.
-9-
<PAGE> 10
ARTICLE VIII
CERTIFICATES OF STOCK
SECTION 8.01. Issuance. Each stockholder of this
corporation shall be entitled to a certificate or certificates showing the
number of shares of capital stock registered in his name on the books of the
corporation. The certificates shall be in such form as may be determined by the
Board of Directors, shall be issued in numerical order and shall be entered in
the books of the corporation as they are issued. They shall exhibit the
holder's name and number of shares and shall be signed by the President or a
Vice President and by the Secretary or an Assistant Secretary. If any
certificate is countersigned (1) by a transfer agent other than the corporation
or any employee of the corporation, or (2) by a registrar other than the
corporation or any employee of the corporation, any other signature on the
certificate may be a facsimile. If the corporation shall be authorized to issue
more than one class of stock or more than one series of any class, the
designations, preferences, and relative participating, optional, or other
special rights of each class of stock or series thereof and the qualifications,
limitations, or restrictions of such preferences and rights shall be set forth
in full or summarized on the face or back of the certificate which the
corporation shall issue to represent such class of stock; provided that, except
as otherwise provided by statute, in lieu of the foregoing requirements there
may be set forth on the face or back of the certificate which the corporation
shall issue to represent such class or series of stock, a statement that the
corporation will furnish to each stockholder who so requests the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations, or
restrictions of such preferences and rights. All certificates surrendered to
the corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and canceled, except that in the case of a lost, stolen, destroyed,
or mutilated certificate a new one may be issued therefor upon such terms and
with such indemnity, if any, to the corporation as the Board of Directors may
prescribe. Certificates shall not be issued representing fractional shares of
stock.
SECTION 8.02. Lost Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen, or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require (1) the owner of such lost, stolen, or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require, (2) such owner to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate or certificates
alleged to have been lost, stolen, or destroyed, or (3) both.
SECTION 8.03. Transfers. Upon surrender to the corporation
or the transfer agent of the corporation of a certificate for shares duly
endorsed or
-10-
<PAGE> 11
accompanied by proper evidence of succession, assignment, or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate, and record the
transaction upon its books. Transfers of shares shall be made only on the books
of the corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney and filed with the Secretary of the
corporation or the Transfer Agent.
SECTION 8.04. Registered Stockholders. The corporation
shall be entitled to treat the holder of record of any share or shares of the
corporation's capital stock as the holder in fact thereof and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws
of the State of Delaware.
ARTICLE IX
DIVIDENDS
SECTION 9.01. Declaration. Dividends with respect to the
shares of the corporation's capital stock, subject to the provisions of the
Certificate of Incorporation, if any, may be declared by the Board of Directors
at any regular or special meeting, pursuant to applicable law. Dividends may be
paid in cash, in property, or in shares of capital stock, subject to the
provisions of the Certificate of Incorporation.
SECTION 9.02. Reserve. Before payment of any dividend,
there may be set aside out of any funds of the corporation available for
dividends such sum or sums as the Board of Directors from time to time, in
their absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the corporation, or for such other purpose as the Board of
Directors shall think conducive to the interest of the corporation, and the
Board of Directors may modify or abolish any such reserve in the manner in
which it was created.
ARTICLE X
INDEMNIFICATION
SECTION 10.01. Third Party Actions. The corporation shall
indemnify any director or officer of the corporation, and may indemnify any
other person, who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against expenses (including attorneys' fees), judgments, fines, and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action,
-11-
<PAGE> 12
suit, or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit, or
proceeding by judgment, order, settlement, or conviction, or upon a plea of
nolo contenders or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
SECTION 10.02. Actions by or in the Right of the Corporation.
The corporation shall indemnify any director or officer and may indemnify any
other person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust, or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue, or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses as
the Court of Chancery or such other court shall deem proper.
SECTION 10.03. Mandatory Indemnification. To the extent that a
director, officer, employee, or agent of the corporation has been successful on
the merits or otherwise in defense of any action, suit, or proceeding referred
to in Sections 10.01 and 10.02, or in defense of any claim, issue, or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
SECTION 10.04. Determination of Conduct. The determination
that a director, officer, employee, or agent has met the applicable standard of
conduct set forth in Sections 10.01 and 10.02 (unless indemnification is
ordered by a court) shall be made (1) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit, or proceeding, or (2) if such quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
SECTION 10.05. Payment of Expenses in Advance. Expenses
incurred in defending a civil or criminal action, suit, or proceeding shall be
paid by the corporation in advance of the final disposition of such action,
suit, or proceeding upon
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<PAGE> 13
receipt of an undertaking by or on behalf of the director, officer, employee,
or agent to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the corporation as authorized in this Article
X.
SECTION 10.06. Indemnity Not Exclusive. The indemnification
and advancement of expenses provided or granted hereunder shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Certificate of Incorporation,
any other bylaw, agreement, vote of stockholders, or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
SECTION 10.07. Definitions. For purposes of this Article X:
(a) "the corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
that, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer,
employee, or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, shall stand in the same position
under this Article X with respect to the resulting or surviving
corporation as he would have with respect to such constituent
corporation if its separate existence had continued;
(b) "other enterprises" shall include employee benefit
plans;
(c) "fines" shall include any excise taxes assessed on a
person with respect to any employee benefit plan;
(d) "serving at the request of the corporation" shall
include any service as a director, officer, employee, or agent of the
corporation that imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee
benefit plan, its participants or beneficiaries; and
(e) a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Article X.
SECTION 10.08. Continuation of Indemnity. The indemnification
and advancement of expenses provided or granted hereunder shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be
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<PAGE> 14
a director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Seal. The corporate seal, if one is authorized
by the Board of Directors, shall have inscribed thereon the name of the
corporation, and the words "Corporate Seal, Delaware." The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or otherwise
reproduced.
SECTION 11.02. Books. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at the offices of the corporation in Houston, Texas, or at such other
place or places as may be designated from time to time by the Board of
Directors.
ARTICLE XII
AMENDMENT
These bylaws may be altered, amended, or repealed by a
majority of the number of directors then constituting the Board of Directors at
any regular meeting of the Board of Directors without prior notice, or at any
special meeting of the Board of Directors if notice of such alteration,
amendment, or repeal be contained in the notice of such special meeting.
-14-
<PAGE> 1
Exhibit 3.7
<TABLE>
<CAPTION>
(TRANSLATION)
<S> <C>
This Document certifies only the particulars The true and complete certification must
the company has registered for legal effect. carry a serial number, bear the full
Facts relating to actual standing should be signature of the Registrar and have the
sought elsewhere seal of the Registration Office affixed
(GARUDA)
No. 08781 PARTNERSHIPS AND COMPANIES
REGISTRATION OFFICE
Bangkok Metropolis
--------------------------
</TABLE>
CERTIFICATION DOCUMENT
----------------------
This is to certify that this has been registered under the Civil and
Commercial Code as a juristic person, being classified as a limited company,
Registration No. 155/2534 on the 7th day of January B.E. 2534 and that the
following information appears in the documents registration records on the day
of issuance hereof:
1. Name of the company* "Thai Romo Limited".
2. The Company has 4 directors whose names are here listed:
(1) Mr. Patrick Richard Rutherford (2) Mr. John A. Moran
------------------------------------- ----------------------------
(3) Mr. David F. Chavenson (4) Mr. Michael Douglas McCoy
------------------------------------- ----------------------------
(5) (6)
------------------------------------- ----------------------------
(7) (8)
------------------------------------- ----------------------------
(9) (10)
------------------------------------- ----------------------------
(11) (12)
------------------------------------- ----------------------------
(13) (14)
------------------------------------- ----------------------------
(15) (16)
------------------------------------- ----------------------------
3. Number and names of the directors who are authorized to sign to bind the
Company are as follows:
Either Mr. Patrick Richard Rutherford or Mr. Michael Douglas McCoy signs
together with the Company's seal affixed; or Mr. John A. Moran jointly
sign with Mr. David F. Chavenson to be two persons together with the
Company's seal affixed.
4. The registered capital is fixed at Baht 106,531,700
5. The address of the head office is 54 B.B. Building, 19th Floor, Asoke
Road(Sukhumvit 21). Khwaeng Khlong Toev, Khet Khlong Toev, Bangkok
Metropolis.
6. The objects of the Company comprise 11 items and are as appears in the
document attached hereto in 2 shee(s) which bears the signature of the
Registrar who certified the document and are affixed with the seal of the
Partnerships and Companies Registration Office.
Issued on this day the 4 November B.E. 2539
/s/ MR. CHAI NITIWATTANA
--------------------------------
( Mr. Chai Nitiwattana )
--------------------------------
The Registrar
<PAGE> 2
The Objects in Detail
of
Thai Romo Limited
The objects of this Partnership/Company are 11 in number, as follows:
GENERAL OBJECTS
(1) To carry on the businesses of exploring and drilling for liquefied and
gaseous hydrocarbons and all kinds of petroleum oil and conduct research,
alter, produce, keep, buy, transport, extract, make, liquefy, find markets,
dispose of and sell all kinds of the said materials; and take all or any
minerals and combine, modify and mix them, and manufacture products and all
or some by-products that may be derived from the said materials or any part
of the said minerals.
(2) To carry on the business of trading in liquefied and gaseous hydrocarbons
and all kinds of petroleum oil as well as the by-products derived from the
objects in (1), either by the Company itself or through branches or
representative offices in or outside the Kingdom.
(3) To import machinery, tools and equipment for use in the production of the
products in item (1).
(4) To become a partner with limited liability in a limited partnership or
shareholder in any limited company either in the country or abroad for
the benefit of the Company, irrespective of whether the partnership or
company has similar objects to the Company or not.
(5) To purchase, rent, let, sell with right of redemption, exchange, mortgage,
pledge or acquire by any other means machinery, real estate and other
immovable and movable property for use in the activities of the Company
without commercial purposes.
(6) To borrow money, lend money, give commercial credit, accept debts to
benefit operations in pursuit of the objects of the Company.
(7) To set up branches or representative offices either in or outside the
Kingdom.
<PAGE> 3
-2-
(8) To contact public bodies and officials to acquire or dispose of
privileges, agreements, rights, titles, permits, rights over trade marks,
industrial property, copyrights, patents, concessions or any special rights
that are necessary for the operation of the Company.
(9) To file applications, hold permits and any registrations necessary or
beneficial to the activities of the Company.
(10) To guarantee natural persons or juristic persons to the inclusion of
guarantee of persons involved with the activities of the Company or the
operations of the Company under the laws on immigration, taxation, customs,
labour and other laws without commercial purposes.
(11) The Company is entitled to issue shares at a price higher than par value.
<PAGE> 4
(Translation)
MEMORANDUM OF ASSOCIATION
OF
THAI ROMO LIMITED
(Amendment)
------------------------
By virtue of the special resolutions of the Extraordinary Shareholders'
Meeting No. 3/2539, dated May 9, 1996 and the Extraordinary Shareholders'
Meeting No. 5/2539, dated May 24, 1996, Clause 5. of the memorandum of
Association is amended as follows:
Clause 5. The capital of the Company is fixed at the sum of Baht One
Hundred and Six Million Five Hundred and Thirty-One
Thousand and Seven Hundred (106,531,700), divided into One
Million Sixty-Five Thousand Three Hundred and Seventeen
shares (1,065,317) with a par value of Baht One Hundred
(100) each.
Certified true and correct contents according to the resolutions of the
aforesaid meetings.
/s/ MICHAEL DOUGLAS MCCOY
---------------------------
(Mr. Michael Douglas McCoy)
Director
<PAGE> 5
----------------------------------------------------------------------
(GARUDA)
Serial No. 29673
Total 1 page
This is to certify that this photocopy is consistent with the
original document which the Partnerships and Companies Registration
Office, Bangkok Metropolis, receive on 11th June B.E. 2539
Issued on 13th June B.E. 2539
-seal and signature-
( Mr. Chaiya Supreeyawanchai )
The Registrar
----------------------------------------------------------------------
<PAGE> 6
(TRANSLATION)
ARTICLES OF ASSOCIATION
OF
THAI ROMO LIMITED
(Amendment)
--------------
By virtue of the special resolutions of the Extraordinary
Shareholders' Meeting No. 7/2539, dated June 2, 1996 and the Extraordinary
Shareholders' Meeting No. 8/2539, dated June 19, 1996; Clause 43. of the
Articles of Association be amended as follows:
Clause 43. The Company shall be automatically dissolved, unless
the Company is continued by the consent of not less
than a majority in interest of the remaining
shareholders of the Company, upon the first to occur
of any of the following causes:
(1) Rutherford-Moran Exploration Company or Thai
Romo Holdings ceasing, for any reason, to be
a shareholder of the Company;
(2) The bankruptcy of any shareholder.
Certified true and correct contents according to the resolution of the
aforesaid meetings.
(Mr. Michael Douglas McCoy)
Director
<PAGE> 7
(GARUDA)
Serial No. 32893
Total 1 page
This is to certify that this photocopy is consistent with the original
document which the Partnerships and Companies Registration Office, Bangkok
Metropolis, receive on 26th June B.E. 2539.
Issued on 28th June B.E. 2539
-seal and signature-
( Mr. Chaiya Supreeyawanchai )
The Registrar
<PAGE> 8
(Translation)
ARTICLES OF ASSOCIATION
OF
THAI ROMO LIMITED
(Amendment)
By virtue of the special resolution of the Extraordinary Shareholders'
Meeting No. 1/2536, dated October 1, 1993 and the Extraordinary Shareholders'
Meeting No. 2/2536, dated October 19, 1993, every clause of the Articles of
Association of the Company is amended as follows:
CHAPTER I
General
1. These regulations shall be called the Articles of Association of THAI
ROMO LIMITED.
2. Unless otherwise specified "Company" shall mean THAI ROMO LIMITED.
3. Unless otherwise stipulated in these Articles the provisions in the Civil
and Commercial Code regarding limited companies shall apply.
4. Any addition or amendment to these Articles or Memorandum of Association
of the Company shall require the passing of a special resolution by the
general meetings of shareholders.
CHAPTER II
Shares and Shareholders
5. The shares of the Company shall consist solely of ordinary shares entered
in name certificates. Except as provided herein, all shares in the
Company shall have identical rights attached to each of them.
<PAGE> 9
-2-
6. Each share certificate issued by the Company shall bear the following
statement upon its face. "Transfer or sale of shares represented by this
share certificate is subject to the restrictions contained in the Articles
of Association of the Company".
7. The Company shall not own its own shares nor take them in pledge.
8. The Company shall provide a shares register book which shall be kept by
the Company under the control of the Board of Directors, and in which
shall be entered the particulars of the transfer or alteration of every
share.
9. No Shareholder may transfer any shares without the unanimous consent of
all shareholders.
10. A fee, as the Board of Directors may from time to time determine, in
accordance with law, may be charged for issue of share certificates and
registration of transfers.
11. The Company may close the registration of share transfer during the
fourteen days immediately preceding Annual General Meeting.
12. In the case when a shareholder dies, the person who becomes entitled to
the shares upon delivering proper evidence to the Company shall be
registered as a shareholder of the Company.
CHAPTER III
General Meetings
13. A general meeting of shareholder shall be held within six months of the
date of registration of the Company and a general meeting shall
subsequently be held once at least in every twelve months. Such general
meetings are called "Annual General Meetings", and all other general
meetings are called "Extraordinary General Meetings". Subject to the
foregoing, the Board of Directors may summon general meetings whenever it
thinks fit.
<PAGE> 10
-3-
14. At least seven days notice prior to every general meeting shall be given
to all shareholders whose names appear in the shares register book.
Notices to shareholders in Thailand shall be given by post and notices to
shareholders abroad shall be immediately sent by registered airmail or
cable or telex or facsimile in which three latter cases a letter confirming
the notice in writing shall be sent to the shareholders. The notice shall
specify the place, the day and the hour of the meeting, and the nature of
the business to be transacted thereat.
15. Annual General Meetings shall be summoned for the purpose of:
(1) Reviewing the report of the Board of Directors covering work done
during the previous period and suggestions as to the future courses
of action;
(2) Considering the balance sheet and profit and loss account of the
preceding fiscal year and approving the same;
(3) Reviewing directors' remuneration, declaration of dividends, and the
appropriation of amounts as reserve fund;
(4) Election of new directors in place of those who must retire on the
expiration of their terms;
(5) Appointment of an auditor and fixing his remuneration; and
(6) Other business.
16. At every general meeting, a quorum shall consist of shareholders or their
proxies representing not less than one-fourth of all shares issued by the
Company.
17. In casting votes at a general meeting, each shareholder shall have one
vote for each share of which he is the holder. All ordinary resolutions
shall be required to be passed by a majority of the votes.
18. Decisions for the following matters shall be made by special resolution
only, which shall require affirmative votes at a general meeting of
shareholders by a majority of not less than three-fourths of the votes and
at a subsequent general meeting affirmative votes by a majority of not less
than two-thirds of the votes:
(1) To amend the Memorandum or Articles of Association;
(2) To increase or reduce the registered capital;
<PAGE> 11
-4-
(3) To dissolve the Company;
(4) To amalgamate with another company; and
(5) To allot new shares as fully or partly paid up otherwise than in
money.
19. Any shareholder may vote by proxy, provided the power given to the proxy
is in writing. The instrument appointing a proxy shall be dated and signed
by the shareholder and shall contain the following particulars:
(1) The number of shares held by the shareholder;
(2) The full name and address of the proxy; and
(3) The meeting or meetings or the period for which the proxy is
appointed.
If a proxy proposes to vote at a meeting, the instrument of appointment of
the proxy must be deposited with the Chairman at or before the commencement
of that meeting.
20. Only shareholders duly registered and having paid all sums for the time
being due and payable to the Company in respect of their shares, shall be
entitled to vote on any question either personally or by proxy at any
general meeting.
21. The chairman of the Board of Directors shall preside at every general
meeting. If there is no such chairman, or if he is not present within
fifteen minutes after the time appointed for holding the meeting, the
shareholders present may elect one of the other directors to be
chairman. The chairman shall not have a casting vote.
22. The chairman may adjourn a general meeting with the consent of the meeting
but in the succeeding meeting no other business may be discussed except
that pending from the previous meeting.
CHAPTER IV
Directors and Auditors
23. A Board of Directors shall be elected by the general meeting to carry out
the Company's business under the control of the general meeting of
shareholders and subject to these Articles of Association.
<PAGE> 12
-5-
A director need not be a shareholder in the Company.
A director shall not be personally liable for any act or omission except
those involving fraud or willful wrongdoing.
24. At the first General Meeting after the registration of the Company and at
the first Annual General Meeting in every subsequent year one-third of
the directors, or, if their number is not a multiple of three, then the
number nearest to one-third must retire from office. A retiring director
is eligible for re-election.
25. The chairman of the Board of Directors shall preside at every directors'
meeting. If the chairman is not present within fifteen minutes after the
time appointed for holding the meeting, the directors present may elect
one of their members to be chairman. The chairman of the Board of
Directors shall not have a second or casting vote.
26. Any vacancy among the members of the Board of Directors occurring
otherwise than by rotation under Article 24 may be filled by the Board of
Directors. Any person so appointed shall retain office only during such
time as the director whom he replaced would have been entitled to retain
the same.
27. Meetings of the Board of Directors shall be held at such times and places
as may be determined by the chairman or the Managing Director.
28. At all meetings of the Board of Directors a quorum shall consist of more
than half of the numbers of directors. A proxy appointed under Article
29 shall be counted in determining the presence of a quorum in the
absence of the directors in whose place he acts. All actions,
appointments and decisions of the Board of Directors shall require the
affirmative vote of a simple majority of the directors present, in person
or by proxy, at a meeting.
The Board of Directors may adopt a resolution without holding a meeting
if all directors approve the action by placing their signatures on the
original copy of the resolution. Any such resolution shall be binding on
the Company only after all of the directors have signed the resolution.
The duly signed resolution shall be delivered to the chairman and placed
in the minutes book of the Company.
<PAGE> 13
-6-
29. Any director may be present at a meeting of directors and vote by proxy,
provided the power given to such proxy is in writing. Instruments
appointing proxies shall be in such form and shall be executed in such
manner as the Board of Directors may from time to time determine or in
particular cases accept.
30. The Board of Directors may appoint one of the directors the Managing
Director of the Company and may entrust to and confer upon him any of the
powers exercisable by the Board of Directors upon such terms and
conditions and with such restrictions as the Board of Directors thinks
expedient and may from time to time revoke, withdraw, alter or vary all
or any such powers.
31. The Board of Directors may appoint other persons to carry out the
Company's business under the Board of Directors' supervision or may duly
execute a power of attorney entrust to and conferring upon such other
persons such powers as they think fit and for such time as they think
expedient and the may confer such powers collaterally with or to the
exclusion of or in substitution for all or any powers of the Board of
Directors in that behalf and may from time to time revoke, withdraw,
alter or vary any such powers.
32. An auditor shall be appointed at every Annual General Meeting on the
nomination of the Board of Directors and remuneration of the auditor
shall be fixed every year.
CHAPTER V
Books and Accounts
33. The Company's books and accounts shall be kept in English with Thai
translation, and shall be maintained according to international
accounting practices and procedures generally acceptable in Thailand.
34. The Board of Directors shall cause true and complete accounts to be kept:
(1) of the sums received and expended by the Company and of the matters
in respect of which each receipt or expenditure takes place; and
(2) of the assets and liabilities of the Company.
<PAGE> 14
-7-
35. The Board of Directors shall cause a balance sheet to be made at least
once in every twelve months, as of the end of the fiscal year of the
Company. The balance sheet must contain a summary of the assets and
liabilities of the Company and a profit and loss account for the fiscal
year of the Company.
36. The Board of Directors shall have the balance sheet and profit and loss
account examined by the Company's auditor and submitted to a general
meeting for adoption within four months from the end of the fiscal year.
A copy of the balance sheet must be sent to every person entered in the
register of shareholders at least three days before the general meeting.
37. The Board of Directors shall cause minutes of all proceedings and
resolutions of all meetings of shareholders and directors to be recorded
and duly entered in the minutes book which shall be kept at the registered
office of the Company. Any such minutes signed by the chairman of the
meeting or of the succeeding meeting, are presumed correct evidence of the
matters therein contained, and all resolutions and proceedings of which
minutes have been so made are presumed to have been duly passed.
CHAPTER VI
Dividends and Reserves
38. The Company must appropriate to a reserve fund, at each distribution of
dividends, at least one-twentieth of the profits, until the reserve fund
reaches one-tenth of the capital of the Company.
39. No dividend may be declared except by a resolution passed in a general
meeting.
Notice of any dividend that may have been declares shall be given by
letter to each shareholder whose name appears on the shares register book.
The Board of Directors may from time to time pay to the shareholders such
interim dividends as appear to the Board of Directors to be justified by
the profits of the Company.
<PAGE> 15
-8-
If the Company has incurred losses, no dividend may be paid unless such
losses have been made good.
CHAPTER VII
Increase in Capital
40. The Company may by special resolution, increase its capital by the issue
of new shares.
41. All new shares must be offered to the shareholders in proportion to the
shares held by them.
42. No new shares of the Company may be allotted as fully or partly paid up
otherwise than in money, unless otherwise provided for by special
resolution of the shareholders.
CHAPTER VIII
Dissolution
43. The Company shall be automatically dissolved upon the following causes:
1. The bankruptcy of any shareholders; or
2. The share transfer of any shareholders to the third party.
/s/ MICHAEL DOUGLAS MCCOY
-------------------------------
[SEAL] Mr. Michael Douglas McCoy
Director
<PAGE> 16
(GARUDA)
Serial No. 53074
Total 9 page(s)
This is to certify that this photocopy is consistent with the original
document which the Partnerships and Companies Registration Office, Samutprakarn
Province, receive on 3 November 1993.
Issued on 2 November 1995
-seal and signature-
(Miss Sumalee Chinapratim)
The Registrar
<PAGE> 17
(Translation)
ARTICLES OF ASSOCIATION
OF
THAI ROMO LIMITED
(Amendment)
----------------
By virtue of the special resolutions of the Extraordinary
Shareholders' Meeting No. 4/2539, dated May 10, 1996 and the Extraordinary
Shareholders' Meeting No. 6/2539, dated May 27, 1996, Clause 43. of the
Articles of Association are amended as follows:
Clause 9. No shareholder may transfer a share of the Company to
anyone who is not already a shareholder in the
Company. Notwithstanding the previous sentence, a
transfer of the shares of the Company to any person
which results from or forms part of an enforcement of
any pledge of the shares of the Company is permitted
and shall, upon receiving written notice from the
relevant transferee, be registered by the Company in
its share register book.
Clause 43. The Company shall be automatically dissolved upon the
first to occur of any of the following causes:
(1) Rutherford-Moran Exploration Company or Thai
Romo Holdings ceasing, for any reason, to be
a shareholder of the Company;
(2) The bankruptcy of any shareholder.
Certified true and correct contents according to the resolutions of
the aforesaid meetings.
/s/ MICHAEL DOUGLAS MCCOY
---------------------------
(Mr. Michael Douglas McCoy)
Director
<PAGE> 18
(GARUDA)
Serial No. 29674
Total 1 page
This is to certify that this photocopy is consistent with the original
document which the Partnerships and Companies Registration Office, Bangkok
Metropolis, receive on 11th June B.E. 2539.
Issued on 13th June B.E. 2539
-seal and signature-
( Mr. Chaiya Supreeyawanchai )
The Registrar
<PAGE> 19
(TRANSLATION)
Form Bor Or Jor. 2
MEMORANDUM OF ASSOCIATION
OF
Thai Romo Limited
-----------------
Registration No. Bor Khor 14226/2533
This Memorandum of Association of the Company has the following items:
1. The name of the Company is "Thai Romo Limited."
2. The Company's office shall be situated in Changwat Bangkok Metropolis.
3. The Company has 11 objects as appear in Form Wor. attached hereto.
4. The liability of the Company's shareholders is severally limited to an
amount not exceeding the unpaid amount on the shares held by each.
----------------------------------------------------------------------
(If the directors of the Company are to have unlimited liability, such
liability should be stated. If they are not, draw a line. "___"
5. The Company's Capital is fixed at Baht One Hundred Thousand (100,000),
and is divided into One Thousand (1,000) shares, each of which has a
par value of Baht One Hundred (100).
6. The names, residence, occupations and signatures of, and the number of
shares subscribed by the 7 promoters, are as follows:
(1) Miss Choopun Chaiprabha Occupation Lawyer Age 39 (in years),
----------------------- ------
Residing at 172 Soi Tula, Tivanont Road, Tambon Tehsai, Amphoe Muang
Nonthaburi, Changwat Nothaburi has subscribed 1 share(s).
(Signed)______________
(2) Miss Angela Nobthai Occupation Lawyer Age 25 (in years), Residing
------------------- ------
at 600/728 Moo 8, Tambon Kukot, Amphoe Lumlukka, Pathum Thani Province
has subscribed 1 share(s). (Signed)________________
<PAGE> 20
(3) Mr. Adul Khokitcharlet Occupation Lawyer
---------------------- ------
Age 29 (in years), Residing at 35/21 Moo 11, Suanpak Road,
Khwaeng Chimplee, Khet Talingchan, Bangkok Metropolis
has subscribed 1 share(s). (Signed)______________________
(4) Mr. Supot Keeree Occupation Employee
---------------- --------
Age 36 (in years), Residing at 302/195 Moo 2, Khwaeng Thung
Songhong, Khet Bang Khen, Bangkok Metropolis
has subscribed 1 share(s). (Signed)______________________
(5) Miss Jariya Thitirattanapinun Occupation: Employee
----------------------------- --------
Age 29 (in years), Residing at 82 Soi Saen Suk, Rama IV
Road, Khwaeng Khlong Ton, Khet Phra Khanong, Bangkok Metropolis
has subscribed 1 share(s). (Signed)______________________
(6) Miss Wanee Vistvudhikul Occupation: Employee
----------------------- --------
Age 26 (in years), Residing at 465 Luang Road, Khwaeng Wat
Thpsirin, Khet Pomprabsattrupai, Bangkok Metropolis
has subscribed 1 share(s). (Signed)______________________
(7) Miss Wandee Tangsaksupan Occupation: Employee
------------------------ --------
Age 23 (in years), Residing at 9/5 Ngor. Moo 1, Prachasongkroh
Road, Khwaeng Dindaeng, Khet Huay Khwang, Bangkok Metropolis
has subscribed 1 share(s). (Signed)______________________
(Signed)______________________ Promoter requesting
Registration
(Miss Angela Nobthai)
===============================================================================
Page 2 of 3 pages (Signed)______________________ Registrar
----- -----
Ancillary document accompanying Application No.
---------/--------
<PAGE> 21
CERTIFICATION OF WITNESSES' SIGNATURES
I, Miss Khwanta Leanggard , Age 26 years, Residing at 92/54-57
Sathorn Thani 2, 19th Floor, North Sathorn Road, Khwaeng Silom, Khet Banq
Rak, Banqkok Metropolis and
I, Miss Navarat Wongbubpha , Age 21 years, Residing at 92/54-57
Sathorn Thani 2, 19th Floor, North Sathorn Road, Khwaeng Silom, Khet Bang
Rak, Bangkok Metropolis
HEREBY CERTIFY that all the promoters of the Company have set their hands before
me.
(Signed) Witness
-----------------
( Miss Khwanta Leanggard )
(Signed) Witness
-----------------
( Miss Navarat Wongbubpha )
This memorandum of Association is made on 2 November 1990
------------------
AFFIX DUTY STAMP
Baht 200.00 for the original
Baht 5.00 for the duplicates
(Signed Promoter requesting
----------------------------
( Miss Angela Nobthai ) Registration
Page 3 of 3 pages (Signed) Registrar
--- --- -------------------------------------------
Ancillary document accompanying Application No. /
-------------
<PAGE> 22
The Objects in Detail
of
Thai Romo Limited
The objects of this Partnership/Company are 11 in number, as follows:
GENERAL OBJECTS
(1) To carry on the business of exploring and drilling for liquefied and
gaseous hydrocarbons and all kinds of petroleum oil and conduct research,
alter, produce, keep, buy, transport, extract, make, liquefy, find markets,
dispose of and sell all kinds of the said materials; and take all or any
minerals and combine, modify and mix them, and manufacture products and all
or some by-products that may be derived from the said materials or any part
of the said minerals.
(2) To carry on the business of trading in liquefied and gaseous hydrocarbons
and all kinds of petroleum oil as well as the by-products derived from the
objects in (1), either by the Company itself or through branches or
representative offices in or outside the Kingdom.
(3) To import machinery, tools and equipment for use in the production of the
products in item (1).
(4) To become a partner with limited liability in a limited partnership or a
shareholder in any limited company either in the country or abroad for
the benefit of the Company, irrespective of whether the partnership or
company has similar objects to the Company or not.
(5) To purchase, rent, let, sell with right of redemption, exchange, mortgage,
pledge or acquire by any other means machinery, real estate and other
immovable and movable property for use in the activities of the Company
without commercial purposes.
(6) To borrow money, lend money, give commercial credit, accept debts to
benefit operations in pursuit of the objects of the Company.
(7) To set up branches or representative offices either in or outside the
Kingdom.
<PAGE> 23
-2-
(8) To contact public bodies and officials to acquire or dispose of
privileges, agreements, rights, titles, permits, rights over trade marks,
industrial property, copyrights, patents, concessions or any special rights
that are necessary for the operation of the Company.
(9) To file applications, hold permits and any registrations necessary or
beneficial to the activities of the Company.
(10) To guarantee natural persons or juristic persons to the inclusion of
guarantee of persons involved with the activities of the Company or the
operations of the Company under the laws on immigration, taxation, customs,
labour and other laws without commercial purposes.
(11) The Company is entitled to issue shares at a price higher than par value.
<PAGE> 24
(Garuda)
Serial No. 185704
Total 4 page(s)
This is to certify that this Photocopy is consistent with the original
document which the Partnerships and Companies Registration Office, Bangkok
Metropolis, received on 2nd November B.E. 2533.
Issued on 3rd November B.E. 2537
Signed and Sealed
(Mrs. Surat Chaimuangma)
The Registrar
<PAGE> 25
(Garuda)
Serial No. 185707
Total 4 page(s)
This is to certify that this Photocopy is consistent with the original
document which the Partnerships and Companies Registration Office, Bangkok
Metropolis, received on 2nd November B.E. 2533.
Issued on 3rd November B.E. 2537
Signed and Sealed
(Mrs. Surat Chaimuangma)
The Registrar
<PAGE> 1
EXHIBIT 5.1
[HUGHES & LUCE, L.L.P. LETTERHEAD]
November 24, 1997
Securities and Exchange Commission
Judiciary Plaza
450 Fifth St., N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We have acted as special counsel to Rutherford-Moran Oil Corporation, a
Delaware corporation ("RMOC"), Rutherford-Moran Exploration Company, a Delaware
corporation ("RMEC"), Thai Romo Holdings, Inc., a Delaware corporation ("TRH")
and Thai Romo Limited, a limited liability company organized under the laws of
the Kingdom of Thailand ("Thai Romo", and, collectively with RMEC and TRH, the
"Subsidiary Guarantors"), in connection with the Company's Registration
Statement on Form S-4 to be filed with the Securities and Exchange Commission
(the "Commission") on November 25, 1997 under the Securities Act of 1933, as
amended, with respect to the exchange of an aggregate principal amount of up to
$120 million of 10 3/4 Senior Subordinated Notes due 2004 of RMOC (the "New
Notes") for a like aggregate principal amount of the issued and outstanding
10 3/4 Senior Subordinated Notes of RMOC due 2004 (the "Old Notes").
In rendering this opinion, we have examined and relied upon executed
originals, counterparts or copies of such documents, records and certificates
(including certificates of public officials and officers of RMOC and the
Subsidiary Guarantors) as we considered necessary or appropriate for enabling
us to express the opinions set forth herein. In all such examinations, we have
assumed the authenticity and completeness of all documents submitted to us as
originals and the conformity to originals and completeness of all documents
submitted to us as photostatic, conformed, notarized or certified copies.
Based on the foregoing, we are of the opinion that the New Notes have been
duly authorized and, when the Registration Statement has become effective and
the New Notes have been duly executed, authenticated, issued and delivered in
accordance with the Registration Rights Agreement dated as of September 29,
1997 between RMOC and Credit Suisse First Boston Corporation, NationsBanc
Capital Markets, Inc., Bear, Stearns & Co. Inc. and Chase Securities Inc. and
the Indenture dated as of September 29, 1997 between RMOC and Bank of Montreal
Trust Company (the "Indenture") against payment therefor, such New Notes will
be
<PAGE> 2
November 24, 1997
Page 2
legally issued and will constitute the valid and legally binding obligations of
RMOC in accordance with their terms.
In connection with our opinion above, we have assumed that at or prior to
the time of delivery of the New Notes, the authorization of the New Notes will
be applicable to each New Note, will not be modified or rescinded and there
will not have occurred any change in law affecting the validity or
enforceability of such New Notes. We have also assumed that the issuance and
delivery of the New Notes will not violate any applicable law or will not result
in a violation of any provision of any instrument or agreement then binding on
RMOC, or any restriction imposed by any court or governmental body having
jurisdiction over RMOC.
This opinion may be filed as an exhibit to the Registration Statement. We
also consent to the reference to this firm as having passed on the validity of
the New Notes under the caption "Legal Matters" in the Registration Statement.
In giving this consent, we do not admit that we are included in the category of
persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the Securities and Exchange
Commission promulgated thereunder.
Very truly yours,
/s/ HUGHES & LUCE, L.L.P.
------------------------------
Hughes & Luce, L.L.P.
<PAGE> 1
EXHIBIT 10.7
- --------------------------------------------------------------------------------
FIRST AMENDMENT TO THE GAS SALES AGREEMENT
- --------------------------------------------------------------------------------
BETWEEN
PETROLEUM AUTHORITY OF THAILAND
AND
B8/32 PARTNERS LIMITED
THAIPO LIMITED
THAI ROMO LIMITED
PALANG SOPHON LIMITED
NOVEMBER 12th, 1997
<PAGE> 2
THE FIRST AMENDMENT TO THE GAS SALES AGREEMENT (the GSA) dated November 7th,
1995 is hereby made this November 12th, 1997.
BETWEEN
(1) PETROLEUM AUTHORITY OF THAILAND having its principal office at 555
Vibhavadi Rangsit Road, Bangkok 10900 (hereinafter called "PTT") and
(2) THAIPO LIMITED, a company duly incorporated and existing under the laws of
Thailand and having its registered office at 18th Floor, B.B. Building, 54
Asoke Road, Sukhumvit 21, Bangkok 10110 (hereinafter called "THAIPO"); and
(3) THAI ROMO LIMITED, a company duly incorporated and existing under the laws
of Thailand and having its registered office at 19th Floor, B.B. Building, 54
Asoke Road, Sukhumvit 21, Bangkok 10110 (hereinafter called "THAI ROMO"); and
(4) PALANG SOPHON LIMITED, a company duly incorporated and existing under the
laws of Thailand and having its registered office at 19th Floor, B.B. Building,
54 Asoke Road, Sukhumvit 21, Bangkok 10110 (hereinafter called "SOPHON"); and
(5) B8/32 PARTNERS LIMITED., a company duly incorporated and existing under
the laws of Thailand and having its registered office at 19th Floor, B.B.
Building, 54 Asoke Road, Sukhumvit 21, Bangkok 10110 (hereinafter called "B8/32
PARTNERS").
THAIPO, THAI ROMO and SOPHON hereinafter all collectively called "Original
Concessionaire")
WHEREAS:
(A) The Original Concessionaire has indicated to PTT that additional Natural
Gas has been found in the Concession Area at the Benchamas/Pakakrong Fields as
defined in the First Schedule, Part II, as hereinafter amended, and that such
Natural Gas can be developed in conjunction with the Natural Gas being
developed in the Tantawan Field in the GSA Area, and
(B) The parties involved at the Benchamas/Pakakrong Fields include B8/32
PARTNERS who is not and Original Concessionaire under the GSA, and
(C) The Original Concessionaire has indicated to PTT that they and the B8/32
PARTNERS wish to sell the Natural Gas from the Benchamas/Pakakrong Fields to
PTT and PTT has indicated its willingness to purchase Natural Gas from the
Benchamas/Pakakrong Fields.
2
<PAGE> 3
NOW IT IS HEREBY AGREED AS FOLLOWS THAT THE GSA SHALL BE AMENDED BY THIS FIRST
AMENDMENT TO REFLECT:
1. That the Concessionaire under the GSA shall include, as of the Effective
Date of this First Amendment, B8/32 PARTNERS.
2. That recital (A) of the GSA shall be amended by the addition of the
following words; "and on the fourth (4th) day of September, 1995, the
Supplementary Petroleum Concession No.2 to Petroleum Concession
1/2534/36".
3. That Clause 1.5 of the GSA shall be amended by the addition of the
following words; "and Supplementary Petroleum Concession No.2 to Petroleum
Concession No.1/2534/36, dated September 4, 1995",
4. That Clause 1.19 of the GSA shall be amended by the addition of the
following words; "Delivery Point shall include either Delivery Points
described in the amended Fourth Schedule or both Delivery Points as the
context requires".
5. That Clause 1.25 shall be amended to read "GSA Area means that part of the
Concessionaire Area described in the First Schedule, as amended by the
First Amendment Part II, and dedicated to the service of the GSA."
6. That Clause 4.1 (line 1) the "Delivery Point" shall be amended to read the
"Delivery Points".
7. That Clause 5.1 the "Delivery Point" (line 1 and 4) shall be amended to
read the "Delivery Points".
8. That Clause 6.3 shall be amended to read as follows:
"An initial Run-In Period shall follow the Date of Commencement of
Delivery (DCD) and a Run-In Period shall also commence the effective date
of each increase in the DCQ pursuant to Subclause 6.6(iv), and such Run-In
Period shall terminate at the earlier of the completion of the
seventy-two (72) hour test or three (3) months. The first day following
the initial Run-In Period shall be referred to as the Contractual Delivery
Date (CDD). The Run-In Period shall be for the purpose of proving the
facilities required for the performance of the initial obligations of both
the Concessionaire and PTT and during such Run-In Period both the
Concessionaire and PTT shall use reasonable endeavours respectively to
deliver and take Sales Gas."
9. That Clause 6.3(i) shall be amended by the deletion of the first paragraph
and the addition of the following paragraph:
3
<PAGE> 4
"The Concessionaire shall, during the Run-In Period, complete a test of
seventy-two (72) consecutive hours. During the Run-In Period,
Concessionaire shall notify PTT that the Concessionaire is ready to attempt
a seventy-two (72) hour test and PTT shall nominate the rate of delivery
in accordance with Clause 6.12 and the Concessionaire shall offer
continuously to PTT Sales Gas of quality and at pressure consistent with
the PTT nomination. If the Concessionaire is unable, for whatever reason
other than PTT's inability to take, to complete the continuous seventy-two
(72) hour period, the test shall be restarted after the Concessionaire
notifies PTT of its desire to restart the seventy-two (72) hour test."
10. That Subclause 6.3(i) shall be amended the last paragraph to read as
follows;
"During the initial Run-In Period, Sales gas shall be paid for at a price
of seventy-five (75) percent of Current Price as calculated. During all
other Run-In Periods Sales Gas delivered in excess of the DCQ immediately
preceding the increased DCQ referred to in Subclause 6.6(iv) shall be paid
for at a price of seventy-five (75) percent of Current Price as
calculated."
11. That Subclause 6.6(ii) shall be amended by the addition of the following
sentence; "In no event, shall the DCQ be less that 125 million Cubic Feet."
12. That Subclause 6.6(iii) shall be amended to change "one hundred and
twenty-five (125)" to "three hundred (300)".
13. That Subclause 6.6(iv) shall be amended by the addition of the following
paragraph;
"Notwithstanding the above paragraph, the date of commencement for the
Run-In Period for the DCQ, including the reserves from Benchamas/Pakakrong
Fields, shall be the date of completion of the facilities necessary for
Concessionaire to produce gas from the Benchamas/Pakakrong Fields, which
date shall be August 1, 1999. Such date may be adjusted by up to 60 days
by Concessionaire informing PTT twelve (12) months in advance of the date
of commencement for the Run-In Period. The DCQ, as determined under
Clause 6.6 (ii) above, shall become effective the date following the Day
the Concessionaire successfully completes the seventy-two (72) hour test
of two (2) months from the date of commencement of the Run-In Period,
whichever is earlier."
14. That Clause 6.17 shall be amended to change "eighty-five (85)" to "one
hundred twenty-five (125)".
4
<PAGE> 5
15. That Article VIII shall be amended by the addition of the following
paragraph;
"The Concessionaire or PTT, as mutually agreed, shall be responsible for
the building and testing of the pipeline for the delivery of
Benchamas/Pakakrong Field Sales Gas to the PTT 24-inch pipeline. The cost
and expense incurred in the design, procurement, fabrication, installation,
testing and commissioning of the pipeline shall be shares by the
Concessionaire and PTT on a 65/35 basis respectively."
16. That Clause 10.3 the last word of second paragraph shall be amended to
change "earlier" to "later".
17. That Clause 14.3 shall be amended to include the words "at the relevant
Delivery Point" immediately after the words "delivering Sales Gas" and the
word "relevant" added ahead of "Delivery Point".
18. That subject to confirmation and acceptance by PTT that the combined Field
Reserves of the Tantawan and Benchamas/Pakakrong Fields equals or exceed
five hundred (500) billion cubic feet Clauses 15.7 and 18.5 shall no longer
have any cause or effect.
19. That Clause 25.4 shall be amended by changing "The Sophonpanich Co., Ltd."
to read "Palang Sophon Limited", with the following change of address:
Palang Sophon Limited
19th Floor, B.B. Building
54 Asoke Road, Sukhumvit 21
Bangkok 10110, Thailand
Fax No.: (66-2) 260-7247
Tel No.: (66-2) 260-7310
20. That Clause 25.4 shall be amended to include:
B8/32 PARTNERS LIMITED,
18th Floor, B.B. Building
54 Asoke Road
Bangkok 10110, Thailand
Fax No.: (66-2) 260-7150
Tel No.: (66-2) 260-7151
21. That the First Schedule Part II shall be amended to include those parts of
the Concession Area containing the Benchamas/Pakakrong Field. Such amended
schedule is attached to this First Amendment at First Schedule Part II GSA
Area (First Amendment).
5
<PAGE> 6
22. That the Second Schedule: "MERCURY: NIL" shall be amended to read "MERCURY:
contain not more than 50 micrograms per cubic meter (by weight) with 12
months to rectify any excess amount."
23. That the Fourth Schedule shall be amended by changing "single Delivery
Point" to "two Delivery Points" in the first paragraph and in the second
paragraph changing "Delivery Point: to "Tantawan Delivery Point".
24. That at the end of the Fourth Schedule a new paragraph will be added to
state: "The Benchamas/Pakakrong Delivery Point shall be agreed between
Concessionaire and PTT within 120 days of the Effective Date of this First
Amendment. If additional time is required to agree and confirm a mutually
acceptable location, both parties agree to use reasonable endeavours to
promptly achieve and confirm an acceptable location."
25. That the Fifth Schedule (Parental Guarantee) attached to this First
Amendment is a Parental Guarantee of performance under the GSA for B8/32
PARTNERS.
26. The provisions of this Amendment shall constitute a supplement to the GSA.
To the extent that there is any conflict or inconsistency between the terms
of the GSA and the terms of this First Amendment, the terms of this First
Amendment shall prevail.
27. Except as amended hereby the GSA shall remain in full force and effect.
28. This First Amendment shall be governed by and construed in accordance with
the laws of Thailand.
29. This First Amendment shall be effective from the execution date.
6
<PAGE> 7
IN WITNESS WHEREOF this First Amendment has been signed by the duly authorized
representatives of the parties on the day and year first above written.
[ILLEGIBLE] [ILLEGIBLE]
- -------------------- --------------------------
Signed for and on behalf of Witness
PETROLEUM AUTHORITY OF THAILAND
[ILLEGIBLE] [ILLEGIBLE]
- -------------------- --------------------------
Signed for and on behalf of Witness
THAIPO LIMITED
[ILLEGIBLE] [ILLEGIBLE]
- -------------------- --------------------------
Signed for and on behalf of Witness
THAI ROMO LIMITED
[ILLEGIBLE] [ILLEGIBLE]
- -------------------- --------------------------
Signed for and on behalf of Witness
PALANG SOPHON LIMITED
[ILLEGIBLE] [ILLEGIBLE]
- -------------------- --------------------------
Signed for and on behalf of Witness
B8/32 PARTNERS LTD.
7
<PAGE> 8
ATTACHMENTS:
First Schedule Part II
Fifth Schedule
8
<PAGE> 9
FIRST SCHEDULE PART II
GSA AREA
(FIRST AMENDMENT)
TANTAWAN FIELD:
<TABLE>
<CAPTION>
POINT LATITUDE LONGITUDE
CODE DEG MINS SEC DEG MINS SEC
----- ------------------ -----------------
<S> <C> <C> <C> <C> <C> <C>
A 10 18 00.00"N 101 24 00.0"E
B 10 18 00.00"N Intersecting with the Declared
Cambodian
Continental Shelf (1972)
C 10 16 50.00"N 101 29 30.0"E
D 10 09 00.00"N 101 30 00.0"E
E 10 09 00.00"N 101 27 00.0"E
F 10 00 00.00"N 101 28 20.0"E
G 10 00 00.00"N 101 24 00.0"E
BENCHAMAS/PAKAKRONG FIELD:
POINT LATITUDE LONGITUDE
CODE DEG MINS SEC DEG MINS SEC
----- ------------------ -----------------
A 10 39 00.00"N 101 14 00.0"E
B 10 31 00.00"N 101 14 00.0"E
C 10 31 00.00"N 101 12 00.0"E
D 10 28 00.00"N 101 12 00.0"E
E 10 28 00.00"N 101 11 30.0"E
F 10 21 30.00"N 101 11 30.0"E
G 10 21 30.00"N 101 14 00.0"E
H 10 22 00.00"N 101 14 00.0"E
I 10 22 00.00"N 101 16 00.0"E
J 10 22 30.00"N 101 16 00.0"E
K 10 22 30.00"N 101 20 00.0"E
L 10 39 00.00"N 101 20 00.0"E
</TABLE>
<PAGE> 10
PARENTAL GUARANTEE
November 7, 1997
TO PETROLEUM AUTHORITY OF THAILAND
Dear Sirs:
In consideration of your entering into an Agreement with B8/32 Partners Limited
and others for the purchase from them of natural gas on the terms and conditions
therein mentioned, we guarantee the due performance by B8/32 Partners Limited
of all its obligations under the said Agreement.
Yours faithfully,
Thai Romo Holdings, Inc.
- -----------------------
/s/ DAVID F. CHAVENSON
by: David F. Chavenson
Vice President
Pogo Producing Company
- ----------------------
/s/ RONALD B. MANNING
by: Ronald B. Manning
Vice President
Palang Sophon Ltd.
- ------------------
/s/ SIRITAS-PRASERT-MANUKITCH /s/ CHOTE SOPHONPANICH
[SEAL OF PALHNG SOPHON LIMITED]
by: Siritas-Prasert-Manukitch Chote Sophonpanich
President Director
<PAGE> 1
EXHIBIT 12.1
Computation of Deficit of Loss To Fixed Charges
<TABLE>
<CAPTION>
Nine months
Year ended December 31, ended September 30,
-------------------------------------------------- ------------------------
1992 1993 1994 1995 1996 1996 1997
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Pre-tax loss (249,000) (239,000) (393,000) (512,000) (2,933,000) (1,550,000) (14,574,000)
Interest expense 183,000 76,000 107,000 190,000 806,000 643,000 4,620,000
------- ------- ------- --------- --------- --------- ----------
Adjusted loss (66,000) (163,000) (286,000) (322,000) (2,127,000) (907,000) (9,954,000)
------- ------- ------- --------- --------- --------- ----------
Fixed charges:
Interest expense 183,000 76,000 107,000 190,000 806,000 643,000 4,620,000
Capitalized interest -- -- -- 1,424,000 1,628,000 1,628,000 733,000
------- ------- ------- --------- --------- --------- ----------
183,000 76,000 107,000 1,614,000 2,434,000 2,271,000 5,353,000
------- ------- ------- --------- --------- --------- ----------
Deficit of loss to fixed charges 249,000 239,000 393,000 1,936,000 4,561,000 3,178,000 15,307,000
======= ======= ======= ========= ========= ========= ==========
</TABLE>
<PAGE> 1
EXHIBIT 21.1
SUBSIDIARIES OF THE COMPANY
Name Jurisdiction
- ---- ------------
Rutherford-Moran Exploration Company Delaware
Thai Romo Limited Kingdom of Thailand
Thai Romo Holdings, Inc. Delaware
Thai-Tex Insurance Company, Inc. Hawaii
<PAGE> 1
EXHIBIT 23.2
Consent of Independent Accountants
The Board of Directors
Rutherford-Moran Oil Corporation:
We consent to the use of our report included herein and to the reference to our
firm under the heading "Experts" in the prospectus.
KPMG PEAT MARWICK LLP
Houston, Texas
November 21, 1997
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS AND GEOLOGISTS
As independent petroleum consultants, we hereby consent to the
incorporation by reference of our report to Rutherford-Moran Oil Corporation
dated July 28, 1997 in this Registration Statement on Form S-4, dated
November 25, 1997. We also consent to all references to our firm included as
part of this Registration Statement.
/s/ RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
Houston, Texas
November 25, 1997
<PAGE> 1
EXHIBIT 25.1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a trustee Pursuant to
Section 305(b) ____
BANK OF MONTREAL TRUST COMPANY
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
New York 13-4941093
(JURISDICTION OF INCORPORATION OR ORGANIZATION (I.R.S. EMPLOYER
IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
77 Water Street
New York, New York 10005
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Mark F. McLaughlin
Bank of Montreal Trust Company
77 Water Street, New York, New York 10005
(212) 701-7602
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
RUTHERFORD-MORAN OIL CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
Delaware 76-0499690
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
5 Greenway Plaza, Suite 200
Houston, Texas 77046
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
-----------------------------------
10 3/4% Senior Subordinated Notes due 2004
(TITLE OF THE INDENTURE SECURITIES)
================================================================================
<PAGE> 2
- 2 -
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Reserve Bank of New York 33
Liberty Street, New York N.Y. 10045
State of New York Banking Department
2 Rector Street, New York, N.Y. 10006
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The obligor is not an affiliate of the trustee.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of eligibility.
1. Copy of Organization Certificate of Bank of Montreal Trust
Company to transact business and exercise corporate trust
powers; incorporated herein by reference as Exhibit "A" filed
with Form T-1 Statement, Registration No. 33-46118.
2. Copy of the existing By-Laws of Bank of Montreal Trust
Company; incorporated herein by reference as Exhibit "B" filed
with Form T-1 Statement, Registration No. 33-80928.
3. The consent of the Trustee required by Section 321(b) of the
Act; incorporated herein by reference as Exhibit "C" with Form
T-1 Statement, Registration No. 33-46118.
4. A copy of the latest report of condition of Bank of Montreal
Trust Company published pursuant to law or the requirements of
its supervising or examining authority, attached hereto as
Exhibit "D".
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 the Trustee, Bank of Montreal Trust Company, a corporation
organized and existing under the laws of the State of New York, has
duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in the City of New
York, and State of New York, on the 18th day of November, 1997.
BANK OF MONTREAL TRUST COMPANY
By:
----------------------------
Amy S. Roberts
Vice President
<PAGE> 3
EXHIBIT "D"
STATEMENT OF CONDITION
BANK OF MONTREAL TRUST COMPANY
NEW YORK
------------------------------
<TABLE>
<S> <C>
ASSETS
Due From Banks $ 594,897
-----------
Investment Securities:
State & Municipal 17,099,800
Other 100
-----------
TOTAL SECURITIES 17,099,900
Loans and Advances
Federal Funds Sold 2,000,000
Overdrafts 17,218
-----------
TOTAL LOANS AND ADVANCES 2,017,218
-----------
Investment in Harris Trust, NY 8,036,150
Premises and Equipment 122,818
Other Assets 2,721,789
-----------
10,880,757
-----------
TOTAL ASSETS $30,592,772
===========
LIABILITIES
Trust Deposits $ 6,408,362
Other Liabilities 659,021
-----------
TOTAL LIABILITIES 7,067,383
-----------
CAPITAL ACCOUNTS
Capital Stock, Authorized, Issued and
Fully Paid - 10,000 Shares of $100 Each 1,000,000
Surplus 4,222,188
Retained Earnings 18,298,208
Equity - Municipal Gain/Loss 4,993
-----------
TOTAL CAPITAL ACCOUNTS 23,525,389
-----------
TOTAL LIABILITIES
AND CAPITAL ACCOUNTS $30,592,772
===========
</TABLE>
I, Mark F. McLaughlin, Vice President, of the above-named bank do
hereby declare that this Report of Condition is true and correct to the best of
my knowledge and belief.
Mark F. McLaughlin
June 30, 1997
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declared that it has been examined
by us, and to the best of our knowledge and belief has been prepared in
conformance with the instructions and is true and correct.
Sanjiv Tandon
Kevin O. Healey
Steven R. Rothbloom
<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
FOR
10 3/4% SENIOR SUBORDINATED NOTES DUE 2004
OF
RUTHERFORD-MORAN OIL CORPORATION
PURSUANT TO THE EXCHANGE OFFER IN RESPECT OF
ALL OF THEIR OUTSTANDING 10 3/4% SENIOR SUBORDINATED NOTES DUE 2004
FOR
10 3/4% SENIOR SUBORDINATED NOTES DUE 2004,
PURSUANT TO THE PROSPECTUS DATED, DECEMBER _, 1997
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON JANUARY _,
1998, OR SUCH LATER DATE AND TIME TO WHICH THE EXCHANGE OFFER MAY BE EXTENDED
(THE "EXPIRATION DATE"). TENDERS OF OLD NOTES MAY BE WITHDRAWN PRIOR TO THE
EXPIRATION DATE.
To: Bank of Montreal Trust Company, Exchange Agent
By Registered or Certified Mail, By Facsimile
Hand or Overnight Courier Bank of Montreal Trust Company
Bank of Montreal Trust Company Attention: Corporate Trust
Department
88 Pine Street, 19th Floor (212) 701-7698
New York, NY 10005
Attention: Corporate Trust Department Confirm by Telephone:
(212) 701-7650
Delivery of this Letter of Transmittal to an address, or transmission via
telegram, telex or facsimile, other than as set forth above will not constitute
a valid delivery. The instructions in this Letter of Transmittal should be read
carefully before this Letter of Transmittal is completed.
HOLDERS THAT WISH TO BE ELIGIBLE TO RECEIVE NEW NOTES FOR THEIR OLD NOTES
PURSUANT TO THE EXCHANGE OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR OLD
NOTES TO THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
By execution of this Letter of Transmittal, the undersigned acknowledges
receipt of the Prospectus (the "Prospectus"), dated December _, 1997, of
Rutherford-Moran Oil Corporation (the "Issuer"), which, together with this
Letter of Transmittal and the Instructions to this Letter of Transmittal (the
"Letter of Transmittal"), constitute the Issuer's offer (the "Exchange Offer")
to exchange its 10 3/4% Senior Subordinated Notes due 2004 (the "New Notes")
that have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to a Registration Statement of which the Prospectus
constitutes a part, for an equal principal amount
1
<PAGE> 2
of its outstanding 10 3/4% Senior Subordinated Notes due 2004 (the "Old Notes")
tendered under this Letter of Transmittal, upon the terms and subject to the
conditions set forth in the Prospectus.
The Company has not entered into any arrangement or understanding with any
person to distribute the New Notes to be received in the Exchange Offer, and to
the best of the Company's information and belief, each person participating in
the Exchange Offer is acquiring the New Notes in its ordinary course of
business, and has no arrangement or understanding with any person to participate
in the distribution of the New Notes to be received in the Exchange Offer.
This Letter of Transmittal is to be used by Holders if (i) certificates
representing Old Notes are to be physically delivered to the Exchange Agent with
this Letter of Transmittal by Holders; (ii) tender of Old Notes is to be made by
book-entry transfer to the Exchange Agent's account at The Depository Trust
Company ("DTC") pursuant to the procedures set forth in the Prospectus under
"The Exchange Offer--Procedures for Tendering" by any financial institution that
is a participant in DTC and whose name appears on a security position listing as
the owner of Old Notes (such participants, acting on behalf of Holders (as
defined below), are referred to in this Letter of Transmittal, together with
such Holders, as "Acting Holders"); or (iii) tender of Old Notes is to be made
according to the guaranteed delivery procedures set forth in the Prospectus
under "The Exchange Offer--Guaranteed Delivery Procedures," Delivery of
documents to DTC does not constitute delivery to the Exchange Agent.
The term "Holder" with respect to the Exchange Offer means any person (i)
in whose name Old Notes are registered on the books of the Issuer or any other
person that has obtained a properly completed bond power from the registered
Holder or (ii) whose Old Notes are held of record by DTC and who desires to
deliver such Old Notes by book entry transfer at DTC.
The undersigned has completed, executed, and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer. Holders that wish to tender their Old Notes must complete
this Letter of Transmittal in its entirety.
All capitalized terms used in this Letter of Transmittal and not defined in
this Letter of Transmittal have the meaning ascribed to them in the Prospectus.
The instructions included with this Letter of Transmittal must be followed.
Questions and requests for assistance or for additional copies of the
Prospectus, this Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to the Exchange Agent. See Instruction 8 herein.
HOLDERS THAT WISH TO ACCEPT THE EXCHANGE OFFER AND TENDER THEIR OLD NOTES
MUST COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY.
2
<PAGE> 3
List below the Old Notes to which this Letter of Transmittal relates. If
the space provided below is inadequate, list the certificate numbers and
principal amounts on a separately executed schedule and affix the schedule to
this Letter of Transmittal.
DESCRIPTION OF OLD NOTES
Name(s) and Address(es) of Holder(s) Certificate Aggregate
(Please fill in, if blank) Number(s)* (Attach Principal
signed list if Amount Tendered
necessary) (if less than all)**
TOTAL PRINCIPAL AMOUNT OF OLD NOTES TENDERED
* Need not be completed by Holders tendering by book-entry transfer.
** Need not be completed by Holders that wish to tender with respect to all
Old Notes listed. See Instruction 2.
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY DTC TO THE
EXCHANGE AGENT'S ACCOUNT AT DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
------------------------------------------
DTC Book-Entry Account No.:
---------------------------------------------
Transaction Code No.:
---------------------------------------------------
If Holders desire to tender Old Notes pursuant to the Exchange Offer and
(i) certificates representing such Old Notes are not lost but are not
immediately available; (ii) time will not permit this Letter of Transmittal,
certificates representing such Old Notes, or other required documents to reach
the Exchange Agent prior to the Expiration Date; or (iii) the procedures for
book-entry transfer cannot be completed prior to the Expiration Date, such
Holders may effect a tender of such Old Notes in accordance with the guaranteed
delivery procedures set forth in the Prospectus under "The Exchange
Offer--Guaranteed Delivery Procedures."
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY DELIVERED TO THE EXCHANGE AGENT
AND COMPLETE THE FOLLOWING:
3
<PAGE> 4
Name(s) of Holder(s) of Old Notes:
--------------------------------------
Window Ticket No. (if any):
---------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
---------------------
Name of Eligible Institution that Guaranteed Delivery:
------------------
DTC Book-Entry Account No.:
---------------------------------------------
If Delivered by Book-Entry Transfer, Name of Tendering Institution:
-----
------------------------------------------------------------------------
------------------------------------------------------------------------
Transaction Code No.:
---------------------------------------------------
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
-------------------------------------------------------------------
Address:
----------------------------------------------------------------
----------------------------------------------------------------
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Subject to the terms of the Exchange Offer, the undersigned hereby
tenders to the Issuer the principal amount of Old Notes indicated above.
Subject to and effective upon the acceptance for exchange of the principal
amount of Old Notes tendered in accordance with this Letter of Transmittal, the
undersigned sells, assigns, and transfers to, or upon the order of, the Issuer
all right, title, and interest in and to the Old Notes tendered by this Letter
of Transmittal. The undersigned hereby irrevocably constitutes and appoints the
Exchange Agent and its agent and attorney-in-fact (with full knowledge that the
Exchange Agent also acts as the agent of the Issuer and as Trustee under the
Indenture for the Old Notes and the New Notes) with respect to the tendered Old
Notes with full power of substitution to (i) deliver certificates for such Old
Notes to the Issuer, or transfer ownership of such Old Notes on the account
books maintained by DTC, together, in either such case, with all accompanying
evidences of transfer and authenticity to, or upon the order of, the Issuer and
(ii) present such Old Notes for transfer on the books of the Issuer and receive
all benefits and otherwise exercise all rights of beneficial ownership of such
Old Notes, all in accordance with the terms of the Exchange Offer. The power of
attorney granted in this paragraph is and will be deemed irrevocable and
coupled with an interest.
4
<PAGE> 5
The undersigned hereby represents and warrants that he or she has full
power and authority to tender, sell, assign, and transfer the Old Notes tendered
by this Letter of Transmittal and that the Issuer will acquire good and
unencumbered title thereto, free and clear of all liens, restrictions, charges,
and encumbrances and not subject to any adverse claim when the same are acquired
by the Issuer. The undersigned also acknowledges that this Exchange Offer is
being made in reliance upon an interpretation by the staff of the Securities and
Exchange Commission that the New Notes issued in exchange for the Old Notes
pursuant to the Exchange Offer may be offered for resale, resold, and otherwise
transferred by the holders thereof (other than any such holder that is an
"affiliate" of the Issuer within the meaning of Rule 405 under the Securities
Act) without compliance with the registration and prospectus delivery provisions
of the Securities Act, provided that such New Notes are acquired in the ordinary
course of such holders' business, such holders have no arrangement with any
person to participate in the distribution of such New Notes, and neither the
holder nor any other person in engaging in or intends to engage in a
distribution of the New Notes. The undersigned acknowledges that if he or she is
participating in the Exchange Offer for the purpose of distributing the New
Notes, the undersigned must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction. If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of the New Notes. If the undersigned is a broker-dealer that will
receive New Notes for its own account in exchange for Old Notes and the
undersigned represents that such Old Notes were acquired as a result of
market-making activities or other trading activities and acknowledges that it
will deliver a prospectus in connection with any resale of such New Notes, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
The undersigned represents that (i) the New Notes required pursuant to the
Exchange Offer are being obtained in the ordinary course of such Holder's
business; (ii) such Holder has no arrangements with any person to participate in
the distribution of such New Notes; and (iii) such Holder is not an "affiliate,"
as defined under rule 405 of the Securities Act, of the Issuer or, if such
Holder is an affiliate, that such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Exchange Agent or the Issuer to be necessary or
desirable to complete the assignment and transfer of the Old Notes tendered by
this Letter of Transmittal.
For purposes of the Exchange Offer, the Issuer will be deemed to have
accepted validly tendered Old Notes when, as, and if the Issuer has given oral
or written notice of such acceptance to the Exchange Agent. If any tendered Old
Notes are not accepted for exchange pursuant to the Exchange Offer for any
reason, certificates for any such unaccepted Old Notes will be terminated
(except as noted below with respect to tenders through DTC), without expense, to
the undersigned at the address shown below or at a different address shown below
or at a different address as may be indicated under "Special Issuance
Instructions" as soon as practicable following the Expiration Date.
5
<PAGE> 6
All authority conferred or agreed to be conferred by this Letter of
Transmittal will survive the death, incapacity, or dissolution of the
undersigned and every obligation under this Letter of Transmittal will be
binding upon the undersigned's heirs, personal representatives, successors, and
assigns.
The undersigned understands that tenders of Old Notes pursuant to the
procedures described under this caption "The Exchange Offer--Procedures for
Tendering" in the Prospectus and in the instructions to this Letter of
Transmittal will constitute a binding agreement between the undersigned and the
Issuer upon the terms and subject to the conditions of the Exchange Offer.
Unless otherwise indicated under "Special Issuance Instructions," please
issue the certificates representing the New Notes issued in exchange for the Old
Notes accepted for exchange and return any Old Notes not tendered or not
exchanged, in the name(s) of the undersigned (or in such event in the case of
Old Notes tendered by DTC, by credit to the account at DTC). Similarly, unless
otherwise indicated under "Special Delivery Instructions," please send the
certificates representing the New Notes issued in exchange for the Old Notes
accepted for exchange and any certificates for Old Notes not tendered or not
exchanged (and accompanying documents, as appropriate) to the undersigned at the
address shown below the undersigned's signatures, unless, in either event,
tender is being made through DTC. In the event that both "Special Issuance
Instructions" and "Special Delivery Instructions" are completed, please issue
the certificates representing the New Notes issued in exchange for the Old Notes
accepted for exchange and return any Old Notes not tendered or not exchanged in
the name(s) of, and send said certificates to, the person(s) so indicated. The
undersigned recognizes that the Issuer has no obligation pursuant to the
"Special Issuance Instructions" and "Special Delivery Instructions" to transfer
any Old Notes from the name of the registered holder(s) thereof if the Issuer
does not accept for exchange any of the Old Notes so tendered.
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS OF OLD NOTES REGARDLESS
OF WHETHER OLD NOTES ARE BEING PHYSICALLY DELIVERED WITH THIS
LETTER OF TRANSMITTAL)
This Letter of Transmittal must be signed by the Holder(s) of Old Notes
exactly as their name(s) appear(s) on certificate(s) for Old Notes or, if
tendered by a participant in DTC, exactly as such participant's name appears on
a security position listing as the owner of Old Notes, or by person(s)
authorized to become registered Holder(s) by endorsements and documents
transmitted with this Letter of Transmittal. If signature is by a trustee,
executor, administrator, guardian, attorney-in-fact, officer, or other person
acting in a fiduciary or representative capacity, such person must set forth his
or her full title below under "Capacity" and submit evidence satisfactory to the
Issuer of such person's authority to so act. See Instruction 3.
6
<PAGE> 7
If the signature appearing below is not of the registered Holder(s) of the
Old Notes, then the registered Holder(s) must sign a valid proxy.
x Date:
- ------------------------------------- -----------------------------------
x Date:
- ------------------------------------- -----------------------------------
Signature(s) of
Holder(s) or
Authorized Signatory
Name(s): Address
- ------------------------------------- -----------------------------------
- ------------------------------------- -----------------------------------
(Please Print) (Including Zip Code)
Capacity Area Code and Telephone No.:
- ------------------------------------- -----------------------------------
Social Security No.:
- -------------------------------------
SIGNATURE GUARANTEE (See Instruction 3)
Certain Signatures Must Be Guaranteed by an Eligible Institution
--------------------------------------------------------------------
(Name of Eligible Institution Guaranteeing Signatures)
--------------------------------------------------------------------
(Address (Including zip code) and Telephone Number
(including area code) of Firm)
--------------------------------------------------------------------
(Authorized Signature)
--------------------------------------------------------------------
(Printed Name)
--------------------------------------------------------------------
(Title)
Date:
-------------------------
7
<PAGE> 8
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 3 and 4)
To be completed ONLY if certificates for Old Notes in a principal amount
not tendered are to be issued in the name of, or the New Notes issued pursuant
to the Exchange Offer are to be issued to the order of, someone other than the
person or persons whose signature(s) appear(s) within this Letter of
Transmittal or to an address different from that shown in the box entitled
"Description of Old Notes "within this Letter of Transmittal, or if Old Notes
tendered by book-entry transfer that are not accepted for purchase are to be
credited to an account maintained at DTC.
Name:
------------------------------------
(Please Print)
Address:
---------------------------------
(Please Print)
- -----------------------------------------
Zip Code
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 3 and 4)
To be completed ONLY if certificates for Old Notes in a are principal
amount not tendered or not accepted for purchase or the New Notes issued
pursuant to the Exchange Offer are to be sent to someone other than the person
or persons whose signature(s) appear(s) within this Letter of Transmittal or to
an address different from that shown in the box entitled "Description of Old
Notes" within this Letter of Transmittal.
Name:
------------------------------------
(Please Print)
Address:
---------------------------------
(Please Print)
- -----------------------------------------
Zip Code
INSTRUCTIONS
Forming Part of the Terms and Conditions
of the Exchange Offer
1. Delivery of this Letter of Transmittal and Old Notes. The certificates
for the tendered Old Notes (or a confirmation of a book-entry into the Exchange
Agent's account at DTC of all Old Notes delivered electronically), as well as a
properly completed and duly executed copy of this Letter of Transmittal or
facsimile of this Letter of Transmittal and any other documents required by this
Letter of Transmittal must be received by the Exchange Agent at its address set
forth herein prior to 5:00 p.m., New York City time, on the Expiration Date. The
method of delivery of the tendered Old Notes, this Letter of Transmittal and all
other required documents to the Exchange Agent is at the election and risk of
the Holder and, except as otherwise provided below, the delivery will be deemed
made only when actually received by the Exchange Agent. Instead of delivery by
mail, it is recommended that the Holder use an overnight or hand delivery
service. In all cases, sufficient time should be allowed to assume timely
delivery. No Letter of Transmittal or Old Notes should be sent to the Issuer.
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available or (ii) that cannot deliver their Old Notes, this Letter
of Transmittal, or any other documents required by this Letter of Transmittal to
the Exchange Agent prior to the Expiration Date must tender their Old Notes and
follow the guaranteed delivery procedures set forth in the Prospectus. Pursuant
to such procedures (i) such tender must be made by or through an Eligible
8
<PAGE> 9
Institution; (ii) prior to the Expiration Date, the Exchange Agent must have
received from the Eligible Institution a properly completed and duly executed
Notice of Guaranteed Delivery (by facsimile transmission, mail, or hand
delivery) setting forth the name and address of the Holder of the Old Notes, the
certificate number or numbers of such Old Notes, and the principal amount of the
Old Notes tendered, stating that the tender is being made thereby, and
guaranteeing that, within five business days after the Expiration Date, this
Letter of Transmittal (or facsimile of this Letter of Transmittal) together with
the certificate(s) representing the Old Notes (or a confirmation of electronic
delivery of book-entry delivery into the Exchange Agent's account at DTC) and
any of the required documents will be deposited by the Eligible Institution with
the Exchange Agent; and (iii) such properly completed and executed Letter of
Transmittal (or facsimile of this Letter of Transmittal), as well as all other
documents required by this Letter of Transmittal and the certificate(s)
representing all tendered Old Notes in proper form for transfer (or a
confirmation of electronic mail delivery of book-entry delivery into the
Exchange Agent's account at DTC), must be received by the Exchange Agent within
five business days after the Expiration Date, all as provided in the Prospectus
under the caption "Guaranteed Delivery Procedures." Any Holder of Old Notes that
wishes to tender his or her Old Notes pursuant to the guaranteed delivery
procedures described above must ensure that the Exchange Agent receives the
Notice of Guaranteed Delivery prior to 5:00 p.m., New York City time, on the
Expiration Date.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance, and withdrawal of tendered Old Notes will be determined by
the Issuer in its sole discretion, which determination will be final and
binding. The Issuer reserves the absolute right to reject any and all Old Notes
not properly tendered or any Old Notes the Issuer's acceptance of which would,
in the opinion of counsel for the Issuer, be unlawful. The Issuer also reserves
the right to waive any irregularities or conditions of tender as to particular
Old Notes. The Issuer's interpretation of the terms and conditions of the
Exchange Offer (including the instructions in this Letter of Transmittal) will
be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old Notes must be cured within such
time as the Issuer determines. Neither the Issuer, the Exchange Agent, nor any
other person will be under any duty to give notification of defects or
irregularities with respect to tenders of Old Notes, nor will any of them incur
any liability for failure to give such notification. Tenders of Old Notes will
not be deemed to have been made until such defects or irregularities have been
cured or waived. Any Old Notes received by the Exchange Agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned without cost by the Exchange Agent to the
tendering Holders of Old Notes, unless otherwise provided in this Letter of
Transmittal, as soon as practicable following the Expiration Date.
2. Partial Tenders. If less than the entire principal amount of any Old
Notes is tendered, the tendering Holders should fill in the principal amount
tendered in the third column of the chart entitled "Description of Old Notes."
The entire principal amount of Old Notes delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise indicated. If the entire principal
amount of all Old Notes is not tendered, Old Notes for the principal amount of
Old Notes delivered to the Exchange Agent will be deemed to have been tendered
unless otherwise indicated. If the entire principal amount of all Old Notes is
not
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tendered, Old Notes for the principal amount of Old Notes not tendered and a
certificate or certificates representing New Notes issued in exchange of any Old
Notes accepted will be sent to the Holder at his or her registered address,
unless a different address is provided in the appropriate box on this Letter of
Transmittal or unless tender is made through DTC, promptly after the Old Notes
are accepted for exchange.
3. Signatures on the Letter of Transmittal, Bond Powers and Endorsements,
Guarantee of Signatures. If this Letter of Transmittal (or facsimile hereof) is
signed by the registered Holder(s) of the Old Notes tendered by this Letter of
Transmittal, the signature must correspond with the name(s) as written on the
face of the Old Notes without alteration, enlargement or any change whatsoever.
If this Letter of Transmittal (or facsimile of this Letter of Transmittal)
is signed by the registered Holder(s) of Old Notes tendered and the
Certificate(s) for New Notes issued in exchange thereof is to be issued (or any
untendered principal amount of Old Notes is to be reissued) to the registered
Holder, such Holder does not need to and should not endorse any tendered Old
Note, nor provide a separate bond power. In any other case, such Holder must
either properly endorse the Old Notes tendered or transmit a properly completed
separate bond power with this Letter of Transmittal, with the signatures on the
endorsement or bond power guaranteed by an Eligible Institution.
If this Letter of Transmittal (or facsimile of this Letter of Transmittal)
or any Old Notes or bond powers are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, or officers of corporations or
others acting in a fiduciary or representative capacity, such persons should so
indicate when signing, and unless waived by the Issuer, evidence satisfactory to
the Issuer of their authority so to act must be submitted with this Letter of
Transmittal.
Endorsements on Old Notes or signatures on bond powers required by this
Instruction 3 must be guaranteed by an Eligible Institution.
Signatures on this Letter of Transmittal (or facsimile of this Letter of
Transmittal) must be guaranteed by an Eligible Institution unless the Old Notes
tendered pursuant thereto are tendered (i) by a registered Holder (including any
participant in DTC whose name appears on a security position listing as the
owner of Old Notes) who has not completed the box set forth herein entitled
"Special Issuance Instructions" or the box entitled "Special Delivery
Instructions" or (ii) for the account of an Eligible Institution.
4. Special Issuance and Delivery Instructions. Tendering Holders should
indicate, in the applicable spaces, the name and address to which New Notes or
substitute Old Notes for principal amounts not tendered or not accepted for
exchange are to be issued or sent, if different from the name and address of the
person signing this Letter of Transmittal (or in the case of tender of the Old
Notes through DTC, if different from DTC). In the case of issuance in a
different name, the taxpayer identification or social security number of the
person named must also be indicated.
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<PAGE> 11
5. Transfer Taxes. The Issuer will pay all transfer taxes, if any,
applicable to the exchange of Old Notes pursuant to the Exchange Offer. If,
however, certificates representing New Notes or Old Notes for principal amounts
not tendered or accepted for exchange are to be delivered to, or are to be
registered or issued in the name of, any person other than the registered Holder
of the Old Notes tendered by this Letter of Transmittal, or if tendered Old
Notes are registered in the name of any person other than the person signing
this Letter of Transmittal, or if a transfer tax is imposed for any reason other
than the exchange of Old Notes pursuant to the Exchange Offer, then the amount
of any such transfer taxes (whether imposed on the registered Holder or any
other person) will be payable by the tendering Holder. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted with this
Letter of Transmittal, the amount of such transfer taxes will be billed directly
to such tendering Holder.
Except as provided in this Instruction 5, it will not be necessary for
transfer tax stamps to be affixed to the Old Notes listed in this Letter of
Transmittal.
6. Waiver of Conditions. The Issuer reserves the absolute right to amend,
waive, or modify specified conditions in the Exchange Offer in the case of any
Old Notes tendered.
7. Mutilated, Lost, Stolen or Destroyed Old Notes. Any tendering Holder
whose Old Notes have been mutilated, lost, stolen, or destroyed should contact
the Exchange Agent at the address indicated in this Letter of Transmittal for
further instruction.
8. Requests for Assistance or Additional Copies. Questions and requests for
assistance and requests for additional copies of the Prospectus or this Letter
of Transmittal may be directed to the Exchange Agent at the address specified in
the Prospectus. Holders may also contact their broker, dealer, commercial bank,
trust company, or other nominee for assistance concerning the Exchange Offer.
(DO NOT WRITE IN SPACE BELOW)
Certificate Surrendered Old Notes Tendered Old Notes Accepted
Delivery Prepared by Check by: Date
---------- ------------ -----------------------
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<PAGE> 12
Notice of Guaranteed Delivery
for Tender of
10 3/4% Senior Subordinated Notes due 2004
(the "Old Notes")
of
Rutherford-Moran Oil Corporation
This form, or one substantially equivalent to this form, must be used to
tender Old Notes pursuant to the Exchange Offer described in the Prospectus
dated December, 1997 (the "Prospectus") of Rutherford-Moran Oil Corporation
(the "Company"), if a holder of Old Notes cannot deliver a Letter of Transmittal
to the Exchange Agent listed below (the "Exchange Agent") or cannot either
deliver the Old Notes to be tendered or complete the procedure for book-entry
transfer prior to 5:00 P.M., New York City time, on January _, 1997 or such
later date and time to which the Exchange Offer may be extended (the "Expiration
Date"). This form, or one substantially equivalent to this form, must be
delivered by hand or sent by facsimile transmission or mail to the Exchange
Agent, and must be received by the Exchange Agent on or prior to the Expiration
Date. See "The Exchange Offer--Procedures for Tendering" in the Prospectus.
Capitalized terms used in this form and not defined herein have the meanings
ascribed to them in the Prospectus.
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<PAGE> 13
To: Bank of Montreal Trust Company, Exchange Agent
By Registered or Certified Mail, Hand or Overnight Courier
Bank of Montreal Trust Company
88 Pine Street, 19th Floor
New York, NY 10005
Attn: Corporate Trust Department
By Facsimile:
Bank of Montreal Trust Company
Attention: Corporate Trust Department
(212) 701-7698
Confirm by Telephone:
(212) 701-7650
Delivery of this instrument to an address other than as set forth above or
transmission of instructions via facsimile other than as set forth above does
not constitute a valid delivery.
Ladies and Gentlemen:
The undersigned hereby represents that he or she is the holder of the Old
Notes indicated below and that the Letter of Transmittal cannot be delivered to
the Exchange Agent and/or either the certificates representing such Old Notes
cannot be delivered to the Exchange Agent or the procedure for book-entry
transfer cannot be completed prior to the Expiration Date. The undersigned
hereby tenders the Old Notes indicated below pursuant to the guaranteed delivery
procedures set forth in the Prospectus and the Letter of Transmittal, receipt of
which is hereby acknowledged.
Name(s) of Tender Holder(s):
- -------------------------------------
- -------------------------------------
Please Print or Type
- -------------------------------------
Signature
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<PAGE> 14
Address(es):
- -------------------------------------
- -------------------------------------
- -------------------------------------
Telephone Number(s):
- -------------------------------------
Name(s) in which Old Notes are registered:
- -------------------------------------
- -------------------------------------
- -------------------------------------
Certificate No(s) Principal Amount
(if applicable)* Transferred
-------------------- --------------------
-------------------- --------------------
-------------------- --------------------
-------------------- --------------------
- --------------
*Need not be completed by book-entry holders.
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<PAGE> 15
GUARANTEE OF DELIVERY
(Not to be used for signature guarantee)
The undersigned, a member firm of a registered national securities exchange
or of the National Association of Securities Dealers, Inc., a commercial bank or
trust company having an office or a correspondent in the United States or an
"eligible guarantor institution" within the meaning of Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended, hereby guarantees that the
undersigned will deliver to the Exchange Agent the certificates representing the
Old Notes being tendered by this form in proper form for transfer (or a
confirmation of book-entry transfer of such Old Notes, into the Exchange Agent's
account at the book-entry transfer facility) with delivery of a properly
completed and duly executed Letter of Transmittal (or facsimile thereof), with
any required signature guarantees and any other required documents, all within
five business days after the Expiration Date.
Name of Firm:
--------------------------- --------------------------------
Authorized Signature
(Please Print) (Please Print)
Address: Name:
-------------------------------- ---------------------------
Please Print or Type
- ---------------------------------------- --------------------------------
Title Zip Code
Telephone No.: Dated
-------------------------- ---------------------------
The institution that completes this form must communicate the guarantee to
the Exchange Agent and must deliver the certificates representing any Old Notes
(or a confirmation of book-entry transfer of such Old Notes into the Exchange
Agent's account at the book-entry transfer facility) and the Letter of
Transmittal to the Exchange Agent within the time period shown herein. Failure
to do so could result in a financial loss to such institution.
15
