Attached files
| file | filename |
|---|---|
| 8-K - TXCO Resources Inc | v174664_8k.htm |
| EX-10.2 - TXCO Resources Inc | v174664_ex10-2.htm |
| EX-3.2 - TXCO Resources Inc | v174664_ex3-2.htm |
| EX-99.2 - TXCO Resources Inc | v174664_ex99-2.htm |
AMENDED
AND
RESTATED
CERTIFICATE
OF INCORPORATION
OF
REORGANIZED
TXCO, INC.
FORMERLY
KNOWN AS TXCO RESOURCES INC.
ORIGINALLY
INCORPORATED AS
THE
EXPLORATION COMPANY OF DELAWARE, INC.
REORGANIZED TXCO, INC., formerly known
as TXCO RESOURCES INC., originally incorporated as THE EXPLORATION COMPANY OF
DELAWARE, INC. (the “Corporation”), a corporation organized and existing under
the General Corporation Law of the State of Delaware (the “General Corporation
Law”), hereby certifies as follows:
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1.
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The
Corporation’s original Certificate of Incorporation was filed on January
23, 1995, with the Secretary of State of the State of Delaware, pursuant
to the General Corporation Law, under the name The Exploration Company of
Delaware, Inc.
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2.
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Pursuant
to Section 245 of the General Corporation Law, the Corporation filed that
certain Restated Certificate of Incorporation of TXCO Resources Inc.,
formerly known as the Exploration Company of Delaware, Inc. on June 21,
2007.
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3.
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Pursuant
to Section 242 and 245 of the General Corporation Law, this Amended and
Restated Certificate of Incorporation (this “Certificate”) has been duly
adopted by the Board of Directors of the
Corporation.
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4.
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The
Corporation files this Certificate in accordance with Section 242 and 245
of the General Corporation Law.
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5.
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The
text of the Corporation’s Certificate of Incorporation is hereby amended
and restated in its entirety as
follows:
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First: The
name of the Corporation is Reorganized TXCO, Inc.
Second: The
registered office of the Corporation in the State of Delaware is located at 2711
Centerville Road, Suite 400, Wilmington, County of New Castle, Delaware 19808.
The name of its registered agent at such address is Corporation Service
Company.
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Third: The
nature of the business, objects and purposes to be transacted, promoted or
carried on by the Corporation are:
To engage
in any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware, and by such statement all lawful acts and
activities shall be within the purposes of the Corporation, except for express
limitations, if any.
Fourth: The
total number of shares which the Corporation has authority to issue is One
Thousand (1,000) shares of Common Stock, par value One Cent ($0.01) per
share.
Fifth: No
stockholder shall have any preemptive right to subscribe to an additional issue
of stock or to any security convertible into such stock or carrying a right to
subscribe to or acquire shares of the Corporation is hereby denied.
Sixth: Directors
shall be elected as set forth in the Corporation’s by-laws. No stockholder of
the Corporation shall have the right to cumulate his votes in the election of
directors.
Seventh: The
Corporation is to have perpetual existence.
Eighth: In
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized:
(1) To
make, alter or repeal the by-laws of the Corporation.
(2) To
authorize and cause to be executed mortgages and liens upon the real and
personal property of the Corporation.
(3) To
set apart out of any of the funds of the Corporation available for dividends a
reserve or reserves for any proper purpose and to abolish any such reserve in
the manner in which it was created.
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(4) By
a majority of the whole Board of Directors, to designate one or more committees,
each committee to consist of one or more of the directors of the Corporation.
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 the committee. Any such committee, to the extent provided in the
resolution or in the by-laws of the Corporation, shall have and may exercise the
powers of the Board of Directors in the management of the business and affairs
of the Corporation and may authorize the seal of the Corporation to be affixed
to all papers which may require it; provided, however, the by-laws may provide
that 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.
(5) When
and as authorized by the affirmative vote of the holders of a majority of the
stock issued and outstanding having voting power given at a stockholders’
meeting duly called upon such notice as is required by statute, or when
authorized by the written consent of the holders of a majority of the voting
stock issued and outstanding, to sell, lease or exchange all or substantially
all the property and assets of the Corporation, including its goodwill and its
corporate franchises, upon such terms and conditions and for such consideration,
which may consist in whole or in part of money or property including securities
of any other corporation or corporations, as the Board of Directors shall deem
expedient and for the best interests of the Corporation.
Ninth: Meetings
of stockholders may be held within or without the State of Delaware, as the
by-laws may provide. The books of the Corporation may be kept (subject to any
provision contained in the statutes) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of Directors or in
the by-laws of the Corporation. Elections of directors need not be by
written ballot unless the by-laws of the Corporation shall so
provide.
Any
action required or permitted to be taken by the stockholders of the Corporation
may be effected at a duly called annual or special meeting of stockholders of
the Corporation or may be effected by a consent in writing by all the
stockholders.
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Subject
to the provisions of the General Corporation Law of Delaware, the Certificate of
Incorporation or by-laws for notice of meetings, and unless otherwise restricted
by this Certificate of Incorporation, stockholders may participate in and hold a
meeting by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each
other, and participation in such meeting shall constitute attendance and
presence in person at such meeting, except where a person participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
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.
Eleventh: A
director of the Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director’s duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, as the
same exists or hereafter may be amended, or (iv) for any transaction from which
the director derived an improper personal benefit. If the Delaware
General Corporation Law hereafter is amended to authorize the further
elimination or limitation on personal 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.
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Twelfth:
(i) Each
person who was or is made a party or is threatened to be made a party to or is
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a “proceeding”), by reason of the
fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer, of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys’ fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as provided in
paragraph (b) hereof, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
board of directors of the Corporation. The right to indemnification
conferred in this Article Twelfth shall be a contract right and
shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition;
provided, however, that, if the Delaware General Corporation Law requires, the
payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only
upon delivery to the Corporation of an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Article Twelfth or otherwise. The Corporation may, by
action of its Board of Directors, provide indemnification to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors or officers.
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(ii) If
a claim under paragraph (i) of this Article Twelfth is not paid in full by the
Corporation within thirty days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard or conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
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(iii) The
right to indemnification and the payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this Article Twelfth
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation,
by-law, agreement, vote of stockholders or disinterested directors or
otherwise.
(iv) The
Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
Thirteenth: The
number of the directors of the Corporation shall be as specified in, or
determined in the manner provided in the by-laws.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, TXCO RESOURCES INC., has caused this Amended and Restated
Certificate of Incorporation to be executed by its President this 11th day of
February, 2010.
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/s/ Albert S. Conly
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Albert
S. Conly, President
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THE
STATE OF TEXAS
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§
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COUNTY
OF BEXAR
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§
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BE IT
REMEMBERED that on this 11th day of February, 2010, personally came before me, a
Notary Public for the State of Texas, Albert S. Conly, President of TXCO
RESOURCES INC., a Delaware corporation, known to me personally to be such, and
acknowledged the foregoing Amended and Restated Certificate of Incorporation on
behalf of such corporation and that the facts stated therein are
true.
GIVEN
under my hand and seal of office the day and year aforesaid.
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/s/ Irma Ochoa Alcala
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Notary
Public in and for the
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State
of Texas
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[Notary
Seal]
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