<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 22, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
HARCOR ENERGY, INC.
WARRIOR, INC.
HTAC INVESTMENTS, INC.
(EXACT NAME OF REGISTRANTS AS SPECIFIED IN THEIR CHARTERS)
<TABLE>
<S> <C> <C>
DELAWARE 1330 33-0234380
TEXAS 1330 N/A
CALIFORNIA 1330 N/A
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
ORGANIZATION)
FIVE POST OAK PARK GARY S. PECK
4400 POST OAK PARKWAY, SUITE 2220 FIVE POST OAK PARK
HOUSTON, TEXAS 77027 4400 POST OAK PARKWAY, SUITE 2220
(713) 961-1804 HOUSTON, TEXAS 77027
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE (713) 961-1804
NUMBER, INCLUDING AREA CODE, OF REGISTRANTS' (NAME, ADDRESS, INCLUDING ZIP CODE, AND
PRINCIPAL EXECUTIVE OFFICES) TELEPHONE NUMBER, INCLUDING AREA CODE, OF
AGENT FOR SERVICE)
</TABLE>
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Copies to:
VINSON & ELKINS L.L.P.
1001 FANNIN
2300 FIRST CITY TOWER
HOUSTON, TEXAS 77002
ATTENTION: MICHAEL P. FINCH
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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, check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
================================================================================================
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE(1) PRICE(1) FEE
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<S> <C> <C> <C> <C>
HarCor Energy, Inc. 14 7/8%
Senior Secured Notes due 2002,
Series B......................... $65,000,000 100% $65,000,000 $22,414
Guarantees(2).................... -- -- -- --
=================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Guarantees by Warrior, Inc. and HTAC Investments, Inc. of the payment of the
principal of, premium, if any, and interest on the 14 7/8% Senior Secured
Notes due 2002, Series B of HarCor Energy, Inc.; pursuant to Rule 457(n), no
separate registration fee is required.
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT 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.
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<PAGE> 2
CROSS REFERENCE SHEET
PURSUANT TO ITEM 501(B) OF REGULATION S-K
SHOWING LOCATION IN PROSPECTUS OF INFORMATION
REQUIRED BY ITEMS OF PART 1 OF FORM S-4
<TABLE>
<CAPTION>
REGISTRATION STATEMENT
ITEM OF FORM S-4 CAPTION OR LOCATION IN PROSPECTUS
--------------------------------------------------- -----------------------------------
<S> <C> <C>
1. Forepart of Registration Statement and Outside
Front Cover Page of Prospectus..................... Outside Front Cover Page
2. Inside Front and Outside Back Cover Pages of
Prospectus......................................... Inside Front, Outside Back Cover
Page
3. Risk Factors, Ratio of Earnings to Fixed Charges
and Other Information.............................. Prospectus Summary; The Company;
Risk Factors; Pro Forma Financial
Data; Selected Historical Financial
Data
4. Terms of the Transaction........................... Outside Front Cover Page;
Prospectus Summary; The Exchange
Offer; Description of Exchange
Notes; Certain Federal Income Tax
Consequences
5. Pro-Forma Financial Information.................... Pro Forma Financial Data
6. Material Contracts with the Company Being
Acquired........................................... Inapplicable
7. Additional Information Required.................... Inapplicable
8. Interests of Named Experts and Counsel............. Legal Matters; Experts
9. Disclosure of Commission Position on
Indemnification for Securities Act Liabilities..... Inapplicable
10. Information with Respect to S-3 Registrants........ Inapplicable
11. Incorporation of Certain Information by
Reference.......................................... Inapplicable
12. Incorporation with Respect to S-2 or S-3
Registrants........................................ Inapplicable
13. Incorporation of Certain Information by
Reference.......................................... Inapplicable
14. Information with Respect to Registrants Other than
S-3 or S-2 Registrants............................. Inapplicable
15. Information with Respect to S-3 Companies.......... Inapplicable
16. Information with Respect to S-2 or S-3 Companies... Inapplicable
17. Information with Respect to Companies Other than
S-2 or S-3 Companies............................... Business and Properties; Index to
Consolidated Financial Statements;
Selected Financial Data; Pro Forma
Financial Data; Management's
Discussion and Analysis of
Financial Condition and Results of
Operations
18. Information if Proxies, Consents or Authorizations
are to be Solicited................................ Inapplicable
19. Information if Proxies, Consents or Authorizations
are not to be Solicited or in an Exchange Offer.... Management; Security Ownership of
Certain Beneficial Owners and
Management; Transactions with
Related Parties
</TABLE>
<PAGE> 3
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Information contained herein 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.
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SUBJECT TO COMPLETION, DATED AUGUST 22, 1995
PROSPECTUS
[LOGO] HARCOR ENERGY, INC.
OFFER TO EXCHANGE ITS 14 7/8% SENIOR SECURED NOTES DUE 2002, SERIES B
FOR ANY AND ALL OF ITS OUTSTANDING 14 7/8% SENIOR SECURED NOTES DUE 2002,
SERIES A
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
, 1995, UNLESS EXTENDED.
HarCor Energy, Inc., a Delaware corporation (the "Company"), hereby offers
(the "Exchange Offer"), upon the terms and conditions set forth in this
Prospectus (the "Prospectus") and the accompanying Letter of Transmittal (the
"Letter of Transmittal"), to exchange $1,000 principal amount of its 14 7/8%
Senior Secured Notes due 2002, Series B (the "Exchange Notes"), which will have
been registered under the Securities Act of 1933, as amended (the "Securities
Act") pursuant to a Registration Statement of which this Prospectus is a part,
for each $1,000 principal amount of its outstanding 14 7/8% Senior Secured Notes
due 2002, Series A (the "Series A Notes"), of which $65,000,000 principal amount
is outstanding. The form and terms of the Exchange Notes are the same as the
form and terms of the Series A Notes (which they replace) except that the
Exchange Notes will bear a Series B designation and will have been registered
under the Securities Act and, therefore, will not bear legends restricting their
transfer and will not be subject to certain provisions relating to an increase
in the interest rate which were applicable to the Series A Notes in certain
circumstances relating to the timing of the Exchange Offer. The Exchange Notes
will evidence the same debt as the Series A Notes (which they replace) and will
be issued under and be entitled to the benefits of the Indenture dated July 24,
1995 between the Company and Texas Commerce Bank National Association (the
"Indenture") governing the Series A Notes. The liens securing the Exchange Notes
will be subordinated to the liens securing the New Credit Facility (as defined)
of the Company. An aggregate amount of $10 million is available to the Company
under the New Credit Facility. As used herein, the term "Notes" refers to both
the Series A Notes and the Exchange Notes. See "The Exchange Offer" and
"Description of Notes."
The Company will accept for exchange any and all Series A Notes validly
tendered and not withdrawn prior to 5:00 p.m., New York City time, on
, 1995, unless extended by the Company in its sole discretion (the
"Expiration Date"). Tenders of Series A Notes may be withdrawn at any time prior
to 5:00 p.m. on the Expiration Date. The Exchange Offer is subject to certain
customary conditions. The Series A Notes were sold by the Company on July 24,
1995 to the Initial Purchasers (as defined) in a transaction not registered
under the Securities Act in reliance upon Section 4(2) of the Securities Act and
were thereupon sold by the Initial Purchasers in reliance upon Rule 144A under
the Securities Act, to a limited number of institutional accredited investors
that agreed to comply with certain transfer restrictions and other conditions.
Accordingly, the Series A Notes may not be offered, resold or otherwise
transferred in the United States unless registered under the Securities Act or
unless an applicable exemption from the registration requirements of the
Securities Act is available. The Exchange Notes are being offered hereunder in
order to satisfy the obligations of the Company under the Registration Rights
Agreement (as defined) entered into by the Company and the Initial Purchasers in
connection with the offering of the Series A Notes. See "The Exchange Offer."
Based on no-action letters issued by the staff of the Securities and
Exchange Commission (the "Commission") to third parties, the Company believes
the Exchange Notes issued pursuant to the Exchange Offer may be offered for
resale, resold and otherwise transferred by any holder thereof (other than any
such holder that is an "affiliate" of the Company 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
Exchange Notes are acquired in the ordinary course of such holder's business and
such holder has no arrangement or understanding with any person to participate
in the distribution of such Exchange Notes. See "Purpose of the Exchange Offer"
and "The Exchange Offer -- Resale of the Exchange Notes." Each broker-dealer
that receives Exchange Notes for its own account pursuant to the Exchange Offer
(a "Participating Broker-Dealer") must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
participating 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 Participating
Broker-Dealer in connection with resales of Exchange Notes received in exchange
for Series A Notes where such Series A Notes were acquired by such Participating
Broker-Dealer as a result of market-making activities or other trading
activities. The Company has agreed that it will make this Prospectus available
to any Participating Broker-Dealer for use in connection with any such resale
during the period required by the Securities Act. See "Plan of Distribution."
There has not previously been any public market for the Series A Notes or
the Exchange Notes. The Company does not intend to list the Exchange Notes on
any securities exchange or to seek approval for quotation through any automated
quotation system. There can be no assurance that an active market for the
Exchange Notes will develop. See "Risk Factors -- Lack of Public Market."
Moreover, to the extent that Series A Notes are tendered and accepted in the
Exchange Offer, the trading market for untendered and tendered but unaccepted
Series A Notes could be adversely affected.
The Exchange Notes will be available initially only in book-entry form. The
Company expects that the Exchange Notes issued pursuant to this Exchange Offer
will be issued in the form of a Global Certificate (as defined), which will be
deposited with, or on behalf of, The Depository Trust Company (the "Depositary"
or "DTC") and registered in its name or in the name of Cede & Co., its nominee.
Beneficial interests in the Global Certificate representing the Exchange Notes
will be shown on, and transfers thereof to qualified institutional buyers will
be affected through, records maintained by the Depositary and its participants.
After the initial issuance of the Global Certificate, Exchange Notes in
certified form will be issued in exchange for the Global Certificate only on the
terms set forth in the Indenture. See "Description of Exchange
Notes -- Book-Entry; Delivery and Form."
Holders of Series A Notes not tendered and accepted in the Exchange Offer will
continue to hold such Series A Notes and will be entitled to all the rights and
benefits and will be subject to the limitations applicable thereto under the
Indenture and with respect to transfer under the Securities Act. The Company
will pay all the expenses incurred by it incident to the Exchange Offer. See
"The Exchange Offer."
SEE "RISK FACTORS" ON P. 12 FOR A DESCRIPTION OF CERTAIN RISKS TO BE
CONSIDERED BY HOLDERS WHO TENDER THEIR SERIES A NOTES 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 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 , 1995
<PAGE> 4
AVAILABLE INFORMATION
The Company has filed with the Commission a Registration Statement on Form
S-4 (the "Exchange Offer Registration Statement", which term shall encompass all
amendments, exhibits, annexes and schedules thereto) pursuant to the Securities
Act and the rules and regulations promulgated thereunder, covering the Exchange
Notes being offered hereby. This Prospectus does not contain all the information
set forth in the Exchange Offer Registration Statement. For further information
with respect to the Company and the Exchange Offer, reference is made to the
Exchange Offer Registration Statement. Statements made in this Prospectus as to
the contents of any contract, agreement or other document referred to are not
necessarily complete. With respect to each such contract, agreement or other
document filed as an exhibit to the Exchange Offer Registration Statement,
reference is made to the exhibit for a more complete description of the document
or matter involved, and each such statement shall be deemed qualified in its
entirety by such reference. The Exchange Offer Registration Statement, including
the exhibits thereto, can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Regional Offices of the Commission at 7 World
Trade Center, New York, New York 10048 and at Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
materials can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
The Company is subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy and information statements and other
information with the Commission. Such material filed by the Company with the
Commission may be inspected by anyone 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 at the regional offices of the Commission located at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and 7 World Trade Center, Suite 1300, New York, New York 10048.
Copies of such material may also be obtained at the Public Reference Section of
the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, upon payment of prescribed fees. The Common Stock of the
Company is quoted on The Nasdaq National Market under the symbol "HARC" and such
reports, proxy and information statements and other information concerning the
Company are available at the offices of The Nasdaq National Market located at
1735 K Street, N.W., Washington, D.C. 20006.
In the event that the Company ceases to be subject to the informational
reporting requirements of the Exchange Act, the Company has agreed that, so long
as the Series A Notes or the Exchange Notes remain outstanding, it will file
with the Commission and distribute to holders of the Series A Notes or the
Exchange Notes, as applicable, copies of the financial information that would
have been contained in annual reports and quarterly reports, including
management's discussion and analysis of financial condition and results of
operations, that the Company would have been required to file with the
Commission pursuant to the Exchange Act. Such financial information shall
include annual reports containing consolidated financial statements and notes
thereto, together with an opinion thereon expressed by an independent public
accounting firm, as well as quarterly reports containing unaudited condensed
consolidated financial statements for the first three quarters of each fiscal
year. The Company will also make such reports available to prospective
purchasers of the Series A Notes or the Exchange Notes, as applicable,
securities analysts and broker-dealers upon their request. In addition, the
Company has agreed that for so long as any of the Series A Notes remain
outstanding it will make available to any prospective purchaser of the Series A
Notes or beneficial owner of the Series A Notes in connection with any sale
thereof the information required by Rule 144A(d)(4) under the Securities Act,
until such time as the Company has either exchanged the Series A Notes for
securities identical in all material respects which have been registered under
the Securities Act or until such time as the holders thereof have disposed of
such Series A Notes pursuant to an effective registration statement filed by the
Company.
i
<PAGE> 5
SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements, including the notes thereto, appearing
elsewhere in this Prospectus. As used in this Prospectus, unless the context
otherwise requires, the "Company" refers to HarCor Energy, Inc. and its
consolidated subsidiaries. See "Glossary of Oil and Gas Terms" for definitions
of certain terms used in this Prospectus.
PURPOSE OF THE EXCHANGE OFFER
The Exchange Offer provides holders of Series A Notes with Exchange Notes
which will generally be freely transferable by the holders thereof without
registration or any prospectus delivery requirement under the Securities Act.
The Company's purpose in engaging in the Exchange Offer is to provide holders of
Series A Notes with freely transferable securities and to comply with provisions
of the Registration Rights Agreement which require, subject to certain
conditions, that the Exchange Offer be made. See "Purpose of the Exchange
Offer".
THE EXCHANGE OFFER
Exchange Ratio............. Each Series A Note is exchangeable for a like
principal amount of Exchange Notes.
Expiration Date............ 5:00 p.m., New York City time, on , 1995,
unless extended, in which case the term
"Expiration Date" means the latest date and time
to which the Exchange Offer shall have been
extended.
Principal Amount of
Notes...................... Subject to the terms and conditions of the Exchange
offer, any and all Series A Notes will be
accepted if duly tendered and not withdrawn prior
to acceptance thereof. The Exchange Offer is not
conditioned upon any minimum principal amount of
Series A Notes being tendered. The Indenture
limits the aggregate amount of Notes, including
Series A Notes and Exchange Notes, which may be
outstanding to $65 million principal amount, all
of which is currently in the form of Series A
Notes.
Trading and Market Price... The Series A Notes are currently eligible for
quotation through the National Association of
Securities Dealers, Inc.'s PORTAL system. Prior
to the date hereof, there has been only a private
institutional trading market for the Series A
Notes. It is anticipated that a similar trading
market will exist for the Exchange Notes
following the Exchange Offer. BT Securities
Corporation and ING (U.S.) Securities Corporation
(the "Initial Purchasers") have advised the
Company that they intend to act as a market maker
for the Exchange Notes; however, they are not
obligated to do so and may discontinue market
making activities with respect to the Exchange
Notes at any time. See "Risk Factors -- Lack of
Public Market."
Conditions of the
Exchange Offer........... The Company's obligation to consummate the Exchange
Offer is subject to certain conditions. See "The
Exchange Offer -- Conditions."
Tenders of Series A Notes may be withdrawn at any
time prior to the Expiration Date. See "The
Exchange Offer -- Withdrawal Rights."
How to Tender.............. Tendering holders of Series A Notes must either (i)
complete and sign a Letter of Transmittal, have
their signatures guaranteed if required, forward
the Letter of Transmittal and any other required
documents to
1
<PAGE> 6
the Exchange Agent at the address set forth under
the caption "The Exchange Offer -- Exchange
Agent", and either deliver the Series A Notes to
the Exchange Agent or tender such Series A Notes
pursuant to the procedures for book-entry
transfer or (ii) request a broker, dealer, bank,
trust company or other nominee to effect the
transaction for them. Beneficial owners of Series
A Notes registered in the name of a broker,
dealer, bank, trust company or other nominee must
contact such institution to tender their Series A
Notes. Series A Notes may be physically
delivered, but physical delivery is not required
if a confirmation of a book-entry transfer of
such Series A Notes to the Exchange Agent's
account at DTC is delivered in a timely fashion.
Certain provisions have also been made for
holders whose Series A Notes are not readily
available or who cannot comply with the procedure
for book-entry transfer on a timely basis.
Questions regarding how to tender and requests
for information should be directed to the
Exchange Agent. See "The Exchange Offer -- How to
Tender."
Acceptance of Tenders...... Subject to the terms and conditions of the Exchange
Offer, including the reservation of certain
rights by the Company, Series A Notes validly
tendered prior to the Expiration Date will be
accepted promptly after such Expiration Date.
Subject to such terms and conditions, Exchange
Notes to be issued in exchange for validly
tendered Series A Notes will be mailed by the
Exchange Agent promptly after acceptance of the
tendered Series A Notes or credited to the
holder's account in accordance with appropriate
book-entry procedures. Although the Company does
not currently intend to do so, if it modifies the
terms of the Exchange Offer prior to the
Expiration Date, such modified terms will be
available to all holders of Series A Notes,
whether or not their Series A Notes have been
tendered prior to such modification. Any material
modification will be disclosed in accordance with
the applicable rules of the Commission and, if
required, the Exchange Offer will be extended to
permit holders of Series A Notes adequate time to
consider such modification. See "The Exchange
Offer -- Acceptance of Tenders."
Exchange Agent............. Texas Commerce Bank National Association
THE EXCHANGE NOTES:
Maturity Date.............. July 15, 2002.
Interest Rate and
Payment Dates............ The Exchange Notes will bear interest at the rate
of 14 7/8% per annum. Interest will accrue from
July 24, 1995 (the "Issue Date") and will be
payable semi-annually on January 15 and July 15 of
each year, commencing on January 15, 1996.
Optional Redemption........ The Exchange Notes will be redeemable, in whole or
in part, at the option of the Company at any time
on or after July 15, 1999 at the redemption prices
set forth herein plus accrued and unpaid interest
thereon, if any, to the redemption date. See
"Description of Notes -- Optional Redemption."
Equity Proceeds Offer and
Redemption............... In the event the Company consummates an offering
of Qualified Capital Stock (as defined) for cash
having net proceeds in excess of $5 million
2
<PAGE> 7
(an "Equity Offering"), on or prior to July 15,
1997, the Company will be required to offer (an
"Equity Proceeds Offer") to purchase an aggregate
principal amount of Notes equal to the lesser of
(i) the maximum principal amount of Notes such that
60% of the aggregate principal amount of Notes
originally issued remains outstanding after the
completion of the offer and (ii) the maximum
principal amount of the Notes which could be
purchased with 50% of the net proceeds of such
Equity Offering, in each case at a price equal to
110% of the principal amount thereof plus accrued
and unpaid interest thereon, if any, to the date of
repurchase. In addition, on or prior to July 15,
1997, the Company may, at its option, redeem Notes
with the net proceeds remaining following an Equity
Proceeds Offer at a price equal to 110% of their
aggregate principal amount plus accrued and unpaid
interest thereon, if any, to the date of
redemption; provided, however, that the Company's
obligation to offer to purchase Notes, and right to
redeem Notes, shall only apply in respect of the
first Equity Offering following the Issue Date and
at least 60% of the aggregate principal amount of
the Notes must remain outstanding after any such
offer to purchase or redemption. See "Description
of Notes -- Equity Offer and Redemption."
Excess Cash Flow........... Subject to the provisions set forth herein,
following the end of each fiscal year, beginning
with the fiscal year ending December 31, 1996, in
which the Company has Excess Cash Flow (as defined)
in excess of $2 million, it will be required to
offer to purchase Notes with an amount equal to 50%
of such Excess Cash Flow at a purchase price equal
to 101% of the principal amount thereof plus
accrued and unpaid interest thereon, if any, to the
date of purchase. See "Description of
Notes -- Excess Cash Flow Offer."
Change of Control.......... In the event of a Change of Control, the Company
will be required, subject to certain conditions, to
make an offer to purchase all of the Notes at 101%
of the principal amount thereof plus accrued and
unpaid interest thereon to the date of purchase.
See "Description of Notes -- Offer to Purchase upon
Change of Control."
Ranking and Guarantees..... The Notes are senior obligations of the Company
secured by a second priority lien on substantially
all of the assets of the Company and its
subsidiaries securing the New Credit Facility
referred to below, and rank pari passu in right of
payment with all existing and future indebtedness
of the Company, other than indebtedness that is
expressly subordinated to the Notes. The Notes are
unconditionally guaranteed (the "Guarantees"),
jointly and severally, on a senior basis by each of
the Company's subsidiaries, Warrior, Inc. and HTAC
Investments, Inc. (the "Guarantors"). One of the
Guarantors has secured its guarantee with a second
priority lien on its assets securing the New Credit
Facility. On July 19, 1995, the Company entered
into a revolving credit facility (the "New Credit
Facility") with Internationale Nederlanden (U.S.)
Capital Corporation ("ING Capital"), as agent for
itself and the other lenders named therein, which
is secured by substantially all of the assets of
the Company and its subsidiaries and which has an
initial availability of $10 million. The liens
securing the Notes are subordinated to the liens
securing the New Credit Facility. See "Description
of Notes -- Ranking
3
<PAGE> 8
and Guarantees" and "Description of Notes --
Certain Covenants -- Limitation on Indebtedness."
Certain Covenants.......... The Indenture contains certain covenants that,
among other things, limit the ability of the
Company and its subsidiaries to make restricted
payments, to incur indebtedness, to create liens,
to issue preferred or other capital stock of
subsidiaries, to sell assets, to permit
restrictions on dividends and other payments by
subsidiaries to the Company, to consolidate, merge
or sell all or substantially all of its assets, to
engage in transactions with affiliates or to engage
in certain businesses. These covenants are subject
to important exceptions and qualifications. See
"Description of Notes -- Certain Covenants."
Federal Income Tax
Considerations........... For federal income tax purposes, holders of Series
A Notes will not recognize any gain or loss upon
the receipt of Exchange Notes pursuant to the
Exchange Offer. The Series A Notes were issued with
original issue discount for federal income tax
purposes. The Exchange Notes will have original
issue discount in the same amount as the original
issue discount with respect to the Series A Notes.
See "Certain Federal Income Tax Considerations."
For additional information regarding the Exchange Notes, see "Description of
Notes."
EXCHANGE OFFER; REGISTRATION RIGHTS; ADDITIONAL INTEREST
In the Registration Rights Agreement, the Company agreed (i) to file within
30 days after the Issue Date, and to cause to become effective within 120 days
after the Issue Date, a registration statement with respect to the Exchange
Offer, and (ii) upon the Exchange Offer Registration Statement being declared
effective, to offer the Exchange Notes in exchange for surrender of the Series A
Notes. If the Company does not comply with its registration obligations in a
timely manner, it will be required to pay additional interest (in addition to
the scheduled payment of interest) during the first 90 day period of such
default in an amount equal to 0.50% per annum at the end of such 90 day period.
The amount of the additional interest will increase by an additional 0.50% per
annum for each subsequent 90 day period until such obligations are complied
with, up to a maximum amount of additional interest of 2.00% per annum. In the
event that applicable interpretations of the staff of the Commission do not
permit the Company to effect the Exchange Offer, or if for any other reason the
Exchange Offer is not consummated within 150 days of the Issue Date, or if
certain holders of the Series A Notes are not permitted to receive the benefit
of the Exchange Offer, the Company will use its best efforts to cause to become
effective a shelf registration statement with respect to the resale of the
Series A Notes and to keep such shelf registration statement effective until the
earlier of three years after its effective date and such time as all of the
Series A Notes have been sold thereunder.
THE COMPANY
HarCor Energy, Inc. is an independent energy company engaged in the
acquisition, development and production of crude oil and natural gas within the
United States. The Company's principal reserves and producing properties are
located in the San Joaquin Basin of California, South Texas, the Permian Basin
of West Texas and New Mexico, and the Louisiana and Alabama onshore Gulf Coast.
Based on the estimates of Ryder Scott Company ("Ryder Scott") and Huddleston &
Co. ("Huddleston"), independent petroleum engineers, as of January 1, 1995 the
Company had total proved reserves of 25.1 MMBOE consisting of 13.5 MMBbls of
crude oil and natural gas liquids ("NGL's") and 69.8 Bcf of natural gas. The
Company's present value of estimated future net cash flows before income taxes
from its total proved reserves (utilizing a 10% discount rate) (the "Pre-tax SEC
10 Value") at January 1, 1995 was $86.7 million, approximately 85% of which was
attributable to net proved reserves acquired in June 1994 and located in the
Lost Hills field in the
4
<PAGE> 9
San Joaquin Basin (the "Bakersfield Properties"). The Company also owns a 75%
interest in a 23 MMcf per day gas processing and fractionation plant in the San
Joaquin Basin, which processes the natural gas produced in the San Joaquin Basin
by the Company and certain third parties.
Recent Developments. On July 24, 1995, the Company sold to the Initial
Purchasers 65,000 Units (the "Unit Offering") consisting of $65,000,000
principal amount of Series A Notes and 1,430,000 warrants (the "Warrants") to
purchase shares of Common Stock of the Company. The net proceeds to the Company
from the Unit Offering were approximately $61.6 million. See "Use of Proceeds."
Upon conclusion of the Unit Offering, the Company entered into the Registration
Rights Agreement with the Initial Purchasers providing, among other things, that
the Company make the Exchange Offer.
BUSINESS STRATEGY
The Company's primary business objective is to acquire and develop, in
cooperation with experienced regional industry operators, oil and gas properties
with significant development potential while using hedging strategies to
minimize the negative effects of oil and gas price volatility on profitability.
The Company intends to continue fulfilling its business objective through the
use of the following operating strategies:
Strategic Alliances with Local Operators. The Company's principal strategy
is to align itself financially and operationally with strategic partners that
have extensive, regionally-focused exploitation and technological expertise.
While the strategic partner serves as operator, HarCor seeks to maintain
supervisory control by retaining decision-making authority over the nature of
capital projects and the magnitude and timing of capital investments. In
addition, these alliances are typically structured so that the strategic
partners have a significant portion of their capital at risk and are motivated
by financial risks and incentives similar to those of the Company. Management
believes that these alliances provide the Company with several important
benefits. First, the Company leverages off the demonstrated core competencies in
specific basins of each of the strategic partners to develop optimal strategies
for managing and exploiting acquired reserves. Second, the Company is able to
maintain low overhead expenses because its corporate level business activity can
be conducted with a small group of senior management and operating personnel.
Finally, alliances with strategic partners enable the Company to identify and
capitalize quickly on acquisition opportunities in established oil and gas
producing regions throughout the United States.
Managed Development. Approximately 16.9 MMBOE, or 67%, of the Company's
total proved reserves as of January 1, 1995, are classified as proved
undeveloped by Ryder Scott. Management believes that the risk inherent in
developing reserves is substantially reduced due to the location of virtually
all of the Company's undeveloped reserves within the known producing region of
the Lost Hills field in the San Joaquin Basin. To exploit these proved
undeveloped reserves, the Company has identified 161 new wells which it intends
to drill during the next eight years to fully develop the proved reserves on the
properties, of which 38 are expected to be drilled in 1995 and 48 in 1996
utilizing a portion of the proceeds from the Unit Offering. In addition, the
Company has targeted 38 locations for future development of probable and
possible reserves located on the San Joaquin properties.
Capitalize on Proven Technologies. Utilizing primary production
techniques, Ryder Scott estimates, as of January 1, 1995, that the Bakersfield
Properties should produce proven reserves net to the Company of approximately
6.3 MMBbls of crude oil, which the Company estimates represents an average
recovery rate of 7.4% of total crude oil originally in place. Upon completion of
primary development, management intends to increase recovery rates by
implementing a secondary recovery waterflood project, which has been
successfully utilized by other oil and gas companies operating in the San
Joaquin Basin. Ryder Scott estimates that the Company's Ellis Lease (one of four
leases which the Company controls in the San Joaquin Basin) alone will yield an
additional 2.6 MMBbls of crude oil of proved undeveloped secondary recovery
reserves utilizing the waterflood recovery method, resulting in an increase in
recovery of estimated crude oil initially in place on the Ellis Lease of an
additional 4%. To the extent that the waterflood application results in
incremental recovery rates greater than 4% over primary recovery methods, the
Company may achieve a significant increase in production and reserves on the
Bakersfield Properties. The Company's current Pre-tax SEC 10 Value related to
the Bakersfield Properties of $73.6 million, therefore, would likely increase as
a result of this incremental
5
<PAGE> 10
recovery. In addition, several major oil companies operating in the San Joaquin
Basin are currently employing, on both a pilot and fully implemented project
basis, other additional enhanced recovery techniques, such as thermal
stimulation, in order to further increase recovery rates and profitability.
Management will continue to evaluate the implementation of various other
enhanced recovery applications once the operating and economic benefits have
been clearly established.
Minimize Exposure to Oil and Gas Price Volatility. Management utilizes a
conservative hedging strategy to protect against the effects of volatility in
crude oil and natural gas commodity prices. Typically, upon consummation of an
acquisition, management will enter into hedging contracts which cover
approximately two thirds of the then existing production of the acquired
property. Over time, as production increases, the Company will continue to
utilize hedging techniques to ensure that a substantial portion of its
production is appropriately hedged. Management believes that this hedging
strategy is advantageous because it allows the Company to generate a predictable
cash flow stream from the hedged portion of its production and therefore provide
a reliable source of funds to finance future development and acquisition
activities. As of June 30, 1995, the Company had fixed approximately 77% of
projected crude oil production and 71% of projected natural gas production from
its currently producing properties over the next two years.
Selective Acquisitions. The Company intends to pursue selective
acquisitions of attractively priced, underexploited oil and gas properties
primarily within the onshore oil and gas producing regions of the United States.
The Company will consider acquisitions both with existing strategic partners as
well as those involving newly established alliances with experienced regional
operators. In addition, management intends to continue to be proactive in
developing acquisition opportunities rather than pursuing opportunities in the
auction market. Management believes that this proactive strategy has
historically resulted in lower acquisition prices paid for its oil and gas
properties. On average, the Company's reserve replacement cost was $2.54 per
BOE, as compared to an average of approximately $4.60 per BOE for 30 of the
largest energy companies selected by Arthur Andersen LLP in an industry
publication, during the three-year period from 1992 to 1994.
PRIMARY OPERATING AREAS
San Joaquin Basin (California). On June 30, 1994, the Company acquired 75%
of Bakersfield Energy Resources, Inc. and its affiliates' ("Bakersfield Energy")
interests in the Lost Hills oil and gas field and a 23 MMcf per day gas
processing plant in the San Joaquin Basin of California, for a total purchase
price of approximately $46 million. The properties produce a light
(approximately 40() gravity), low sulfur crude oil that has a higher value
product yield than most other crude oils produced in California and consequently
sells at a premium in that market. The associated natural gas produced with the
crude oil has a high Btu content (approximately 1,240 Btu) which yields in
excess of 2 gallons of NGLs per Mcf of natural gas when processed in the
Company's gas plant. At the time of the acquisition, the Company believed that
significant development potential existed at the Bakersfield Properties. On June
30, 1994 the Bakersfield Properties had 47 net productive wells with average
daily production for June 1994 of approximately 546 Bbls of oil and 7,195 Mcf of
gas per day. As of January 1, 1994, Ryder Scott estimated that the net proved
reserves attributable to the interests acquired by the Company in the
Bakersfield Properties was 6.6 MMBbls of crude oil and 46.8 Bcf of natural gas,
or a total of 14.5 MMBOE and a Pre-tax SEC 10 Value of $49.7 million. Since the
acquisition, the Company, in conjunction with Bakersfield Energy, the local
operator and 25% owner, has drilled 27 gross wells on the Bakersfield Properties
and expects to drill an additional 161 gross wells over the next eight years. As
a result of drilling completed during the second half of 1994, the Company's
average daily production from the Bakersfield Properties increased by 30% to 792
Bbls of oil and 8,842 Mcf of gas per day during January 1995 as compared to June
1994. Furthermore, the Company's net proved reserves from the Bakersfield
Properties have increased by 49% to 21.6 MMBOE at January 1, 1995, producing a
Pre-tax SEC 10 Value of $73.6 million as estimated by Ryder Scott. Management
estimates that the Company's share of the future development costs to fully
develop the proved reserves of the Bakersfield Properties will be $53.0 million
over the next eight years.
The gas processing plant acquired as part of the Bakersfield Properties is
located in the South Belridge Field, approximately 10 miles southwest of the
Lost Hills Field. The plant is a modern, refrigeration liquid
6
<PAGE> 11
extraction facility with inlet capacity of 23 MMcf of gas per day and liquid
fractionation capacity of 100,000 gallons of NGLs per day. Currently, the plant
processes all of the gas produced from the Bakersfield Properties as well as gas
produced by third parties. Management believes that the plant has the capacity
to process 100% of the expected incremental natural gas volume produced from the
Bakersfield Properties.
The Bakersfield Properties are currently being operated by Bakersfield
Energy, a company which originally acquired an interest in these properties in
1990. The four members of senior management of Bakersfield Energy have a
combined 80 years experience in drilling and operating in the San Joaquin Basin.
As part of the terms of the acquisition of the Bakersfield Properties,
Bakersfield Energy maintains a 25% interest in the Bakersfield Properties, is a
stockholder of the Company and has a representative on the Board of Directors of
the Company. In addition, the Company entered into a joint acquisition agreement
with Bakersfield Energy which gives each party the right to participate equally
in any acquisition of oil and gas interests located within the state of
California by the other party.
Permian Basin (West Texas/New Mexico). Since 1989, the Company has worked
with Penroc Oil and Gas Corporation to jointly identify and acquire interests in
oil and gas properties located in the Permian Basin with total acquisition costs
net to the Company of $3.4 million. Subsequent remedial work, development
drilling activity and secondary recovery procedures have resulted in current
average daily production of 297 Bbls of crude oil and 379 Mcf of natural gas
based on production in the quarter ended June 30, 1995, and Ryder Scott's
estimate of net proved reserves at January 1, 1995 was 1.6 MMBOE.
South Texas. The Company has worked with Washington Energy Exploration,
Inc. (which was recently acquired by Cabot Oil and Gas Corporation ("Cabot")) to
jointly identify and acquire interests in oil and gas properties located in
South Texas for a total acquisition cost net to the Company of $5.4 million.
Current average daily production in South Texas is 34 Bbls of crude oil and
3,682 Mcf of natural gas based on production in the second quarter ended June
30, 1995, and Ryder Scott's estimate of net proved reserves was 1.4 MMBOE at
January 1, 1995.
Other. In May 1993, the Company acquired certain gross overriding royalty
and net profits interests in certain oil and gas properties located in Oklahoma,
Texas, Louisiana and New Mexico from institutional participants in a fund
managed by Trust Company of the West ("TCW"). Pursuant to this transaction, the
Company acquired 528 MBOE of net proved reserves for $3.1 million.
COMPANY HISTORY
The Company, formerly named Pangea Petroleum Company ("Pangea"), was
organized in 1976, but did not conduct significant operations until the
completion of an initial public offering in May 1980. In 1987, a group led by
Mark G. Harrington, the current Chairman of the Board and Chief Executive
Officer, acquired control of the Company and changed the jurisdiction of
incorporation from California to Delaware and the name from Pangea to HarCor
Energy, Inc. Under Harrington's leadership, the Company's proved reserves have
grown from approximately 0.5 MMBOE at January 1, 1987 to 25.1 MMBOE at January
1, 1995.
The Company's corporate headquarters are located at Five Post Oak Park,
4400 Post Oak Parkway, Suite 2220, Houston, Texas 77027, telephone (713)
961-1804.
TRANSFER RESTRICTIONS
The Series A Notes have not been registered under the Securities Act and
are subject to certain restrictions on transfer. The Exchange Notes, when
registered and exchanged for the Series A Notes pursuant to an effective
registration statement, will generally be freely transferable.
RISK FACTORS
SEE "RISK FACTORS" FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE
CONSIDERED IN EVALUATING AN INVESTMENT IN THE EXCHANGE NOTES.
7
<PAGE> 12
SUMMARY HISTORICAL AND PRO FORMA FINANCIAL DATA
The following table presents summary historical consolidated financial data
of the Company for the five years ended December 31, 1994, which have been
derived from the Company's consolidated financial statements, and condensed
unaudited historical and pro forma financial data. The pro forma data give
effect to (i) the consummation of the Unit Offering and the application of a
portion of the net proceeds to repay all indebtedness outstanding under the its
prior credit facility (the "Prior Credit Facility") and its prior bridge loan
(the "Bridge Loan"), to redeem the Series D Preferred Stock and to fund the
acquisition of certain oil and gas interests associated with the Bakersfield
Properties (the "Carried Interest Wells") (ii) the acquisition of the
Bakersfield Properties and the results of operations for the Bakersfield
Properties, (iii) the exchange of certain outstanding warrants for common stock
and (iv) the write-off of deferred financing costs as a result of the early
extinguishment of debt and the recording of estimated transaction costs relating
to the Unit Offering. The unaudited Pro Forma Condensed Consolidated Balance
Sheet reflects such adjustments as if such transactions had occurred at June 30,
1995 and the unaudited Pro Forma Statements of Operations reflect such
adjustments as if such transactions had occurred on January 1, 1994 (except that
the acquisition of the Carried Interest Wells is assumed to have occurred during
the fourth quarter of 1994, the period when the wells were drilled and
completed). The historical consolidated financial data of the Company for the
six months ended June 30, 1994 and 1995 have been derived from the Company's
interim consolidated financial statements which, in the opinion of management of
the Company, have been prepared on the same basis as the consolidated financial
statements and include all adjustments (consisting of only normal recurring
adjustments) necessary for a fair presentation of the financial data for such
periods. The information in this table should be read in conjunction with "Pro
Forma Consolidated Financial Data," "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and the Consolidated Financial
Statements and the notes thereto included elsewhere herein.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
-------------------------------------------------------- ----------------------------
PRO PRO
FORMA FORMA
1990 1991 1992 1993 1994 1994 1994 1995 1995
------ ------- ------- ------- ------- ------- ------- ------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
STATEMENT OF OPERATIONS DATA:
Revenues:
Oil and gas revenues(1)........... $4,905 $ 5,776 $ 6,162 $ 6,507 $10,982 $16,369 $ 3,276 $ 7,056 $ 8,337
Gas plant revenues................ -- -- -- -- 1,978 2,969 -- 3,154 3,154
Interest income and other(2)...... 466 259 504 218 253 253 18 35 35
------ ------- ------- ------- ------- ------- ------- ------- --------
Total revenues.................. 5,370 6,034 6,666 6,725 13,213 19,591 3,294 10,245 11,526
Operating expenses(3)............... 2,478 4,727 3,613 2,478 5,647 8,617 1,162 4,916 5,110
Depletion, depreciation and
amortization...................... 1,189 2,222 2,142 2,641 3,897 4,994 1,324 2,443 2,888
General and administrative
expenses.......................... 1,355 2,372 2,085 2,105 2,014 2,110 986 1,216 1,216
Interest expense(4)................. 580 872 1,048 542 2,269 10,500 304 2,237 5,318
Dividends on preferred stock........ (24) (40) (32) (246) (795) (400) (140) (671) (195)
Net loss applicable to common
stock............................. (222) (1,501) (1,446) (1,287) (1,890) (7,233) (947) (1,403) (3,201)
OTHER DATA:
EBITDA(5)........................... $1,537 $(1,065) $ 968 $ 2,142 $ 5,552 $ 8,864 $ 1,146 $ 4,113 $ 5,200
Capital expenditures................ 4,185 2,593 4,237 4,283 45,608(6) (7) 43,241(6) 515 (7)
Deficiency of earnings to fixed
charges........................... -- 1,461 1,414 1,041 694 6,833 [807] [568] [3,006]
</TABLE>
<TABLE>
<CAPTION>
JUNE 30, 1995
------------------------
HISTORICAL PRO FORMA
---------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents................................................................ $ 1,254 $ 10,230
Total assets............................................................................. 66,768 80,134
Total debt............................................................................... 39,340 62,989
Series D Preferred Stock................................................................. 8,949 --
Stockholders' equity..................................................................... 14,357 13,023 (8)
ACNTA(9)................................................................................. 106,137
Ratio of ACNTA to total debt............................................................. 1.69
</TABLE>
- ---------------
(1) Includes $1,399, $2,388 and $2,895 in 1990, 1991 and 1992, respectively,
from HCO Energy, Ltd. ("HCO"), its former Canadian affiliate. In December
1992, the Company deconsolidated HCO, and in January 1993, the Company sold
all of its remaining shares of HCO common stock.
(2) Includes $412, $222 and $459 in 1990, 1991 and 1992, respectively, from HCO.
(3) Includes production costs, gas plant costs, dry hole, impairment and
abandonment costs and engineering and geological costs.
(4) Interest expense includes $29, $42, $64 and $220 in 1991, 1992, 1993 and
1994, respectively, and $225 in the six months ended June 30, 1995 related
to amortization of deferred financing costs. Pro forma year ended December
31, 1994 includes $512 and Pro forma six months ended June 30, 1995 includes
$256 related to amortization of deferred financing costs.
(5) EBITDA represents income (loss) before provision for income tax and
extraordinary items and before depletion, depreciation, amortization,
interest expense, minority interests and other. EBITDA is presented because
it is a widely accepted financial indicator of a company's ability to
service and/or incur indebtedness. However, EBITDA should not be considered
as an alternative to net income as a measure of operating results or to cash
flows as a measure of liquidity.
(6) Includes $42,000 of cash acquisition costs incurred in connection with the
acquisition of the Bakersfield Properties.
(7) Approximately $9 million of the net proceeds from the Unit Offering will be
used to finance the development of proved reserves on the Bakersfield
Properties. See Note (K) of Notes to "Pro Forma Consolidated Financial
Data."
(8) Includes a reduction in additional paid-in capital of $2,017 in connection
with the redemption of the Series D Preferred Stock, a write off of $1,527
of deferred financing costs in connection with the early extinguishment of
debt and an increase in additional paid-in capital of $2,239 related to
value ascribed to all of the warrants issued in connection with the Unit
Offering.
(9) ACNTA means Adjusted Consolidated Net Tangible Assets as defined in the
Indenture, except that discounted future net revenue has been determined
using oil and gas prices in effect at December 31, 1994. See "Description of
Notes -- Certain Covenants; Certain Definitions."
8
<PAGE> 13
SUMMARY OIL AND GAS RESERVE DATA
The following table sets forth summary information with respect to the
Company's estimated proved oil and gas reserves. The estimates of the Company's
proved reserves and future net revenues were derived from reports prepared by
Ryder Scott, with the exception of certain royalty and net profits interests
representing approximately 1% of the Company's Pre-tax SEC 10 Value, which were
derived from reports prepared by Huddleston. As of December 31, 1994, the
average sales prices used for purposes of estimating the proved reserves and
future net revenues were $16.09 per Bbl of crude oil and $2.17 per Mcf of
natural gas with respect to the Bakersfield Properties and were $14.61 per Bbl
of crude oil and $1.72 per Mcf of natural gas with respect to the Company's
other properties in the aggregate. As of December 31, 1993 and 1992, the average
sales prices used for estimating the proved reserves and future net revenues
were $11.65 and $17.10 per Bbl of crude oil and $2.16 and $2.01 per Mcf of
natural gas, respectively, with respect to the Company's aggregate properties.
See "Risk Factors -- Reliance on Estimates of Proved Reserves" and "-- Certain
Business Risks" and "Management's Discussion and Analysis of Financial Condition
and Results of Operations." A summary report of Ryder Scott is included as Annex
A hereto.
<TABLE>
<CAPTION>
DECEMBER 31, 1994
PROVED RESERVES
--------------------------------------
DEVELOPED UNDEVELOPED TOTAL
--------- ----------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Estimated proved reserves:
Crude oil and NGLs (MBbl)........................................ 3,570 9,919 13,489
Natural gas (MMcf)............................................... 27,651 42,151 69,802
Crude oil equivalents (MBOE)..................................... 8,179 16,944 25,123
Estimated future net revenues before income taxes.................. $64,565 $95,857 $160,422
Pre-tax SEC 10 Value............................................... $44,098 $42,582 $ 86,680
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31, 1993
PROVED RESERVES
--------------------------------------
DEVELOPED UNDEVELOPED TOTAL
--------- ----------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Estimated proved reserves:
Crude oil and NGLs (MBbl)........................................ 869 855 1,724
Natural gas (MMcf)............................................... 11,362 5,807 17,169
Crude oil equivalents (MBOE)..................................... 2,763 1,823 4,586
Estimated future net revenues before income taxes.................. $22,011 $12,379 $ 34,390
Pre-tax SEC 10 Value............................................... $15,661 $ 5,119 $ 20,780
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31, 1992
PROVED RESERVES
--------------------------------------
DEVELOPED UNDEVELOPED TOTAL
--------- ----------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Estimated proved reserves:
Crude oil and NGLs (MBbl)........................................ 875 456 1,331
Natural gas (MMcf)............................................... 5,686 905 6,591
Crude oil equivalents (MBOE)..................................... 1,823 607 2,430
Estimated future net revenues before income taxes.................. $16,515 $ 5,105 $ 21,620
Pre-tax SEC 10 Value............................................... $11,722 $ 2,797 $ 14,519
</TABLE>
9
<PAGE> 14
SUMMARY OPERATING DATA
The following table sets forth summary information with respect to the
Company's operations for the periods indicated.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
-------------------------- -----------------
1992(1) 1993 1994 1994 1995
------ ------ ------ ------ -------
<S> <C> <C> <C> <C> <C>
Average Net Daily Production:
Crude oil and NGLs (Bbls)................................ 356 505 1,128 516 1,704
Natural gas (Mcf)........................................ 1,550 5,514 9,239 5,538 12,536
Crude oil equivalents (BOE).............................. 614 1,424 2,668 1,439 3,793
Average Sales Price(2):
Crude oil (per Bbl)...................................... $18.37 $16.49 $15.79 $14.97 $ 16.51
Natural gas (per Mcf).................................... 1.64 1.77 1.82 $ 1.89 $ 1.56
Cost Data(3):
Average production costs (per BOE)....................... $ 5.90 $ 4.41 $ 4.17 $ 3.98 $ 4.28
General and administrative expense (per BOE)............. 7.10 4.13 2.32 $ 3.81 $ 2.06
Depletion, depreciation and amortization (per BOE)....... 4.00 5.13 4.26 $ 5.11 $ 3.84
Reserve Life (years):
Total proved reserves.................................... 11.0 9.0 26.2 8.7(4) 18.1(4)
Total proved developed reserves.......................... 8.2 5.4 8.5 5.3(4) 5.9(4)
Reserve replacement rate................................... 360% 520% 2,240% (5) (5)
Crude oil and NGLs as a percentage of total proved
reserves................................................. 54.8% 37.6% 42.1% (5) (5)
Wells (at end of period):
Gross wells.............................................. 316 334 379 334 380
Net wells................................................ 87.3 103.9 149.8 103.9 150.1
</TABLE>
- ---------------
(1) In December 1992, the Company deconsolidated HCO, and in January 1993, the
Company sold all of its remaining shares of HCO common stock. The operating
data reflected in this table do not include the results of HCO. See Note 2
of Notes to the Consolidated Financial Statements.
(2) Calculation of average selling price per barrel of crude oil and condensate
excludes certain volumes and revenues attributable to hydrocarbon liquids
and product sales. All average price data consider the effects of the
Company's fixed-price sales and hedging contracts. See Note 10 of Notes to
the Consolidated Financial Statements.
(3) Excludes NGLs and operating costs related to the gas plant.
(4) Figures are calculated based on annualized six months ended June 30
production rates.
(5) Data not relevant on a six months basis.
10
<PAGE> 15
RISK FACTORS
Prospective investors should carefully consider the following factors
regarding an investment in the Notes.
LEVERAGE AND DEBT SERVICE
As of June 30, 1995, after giving effect to the sale on July 24, 1995 of
Units consisting of the Series A Notes and the Warrants and the application of a
portion of the net proceeds thereof, the Company's total long-term debt and
stockholders' equity would have been approximately $63.0 million (net of
offering discount and value ascribed to the Warrants) and $13.0 million,
respectively.
The Company's indebtedness has several important consequences to the
holders of Notes, including, but not limited to the following: (i) the Company
will incur significant interest expense and principal repayment obligations in
connection with the Notes and, to the extent drawn, the New Credit Facility;
(ii) the Company's ability to obtain additional financing in the future, as
needed, may be limited; (iii) the Company's leveraged position and the covenants
contained in certain of its debt agreements could limit the Company's ability to
expand and compete; and (iv) the Company's substantial leverage may make it more
vulnerable to economic downturns, limit its ability to withstand competitive
pressures and reduce its flexibility in responding to changing business and
economic conditions.
The Company's ability to pay interest and principal on the Notes and to
satisfy its other debt obligations depends upon its future operating
performance, which will be affected by prevailing economic conditions and
financial, business and other factors, certain of which are beyond its control.
The Company anticipates that its operating cash flow, together with borrowings
under the New Credit Facility, will be sufficient to meet its operating expenses
and to service its debt requirements as they become due. However, if the Company
is unable to service its indebtedness, it will be forced to pursue one or more
alternative strategies such as selling assets, curtailing its development
drilling activities, restructuring or refinancing its indebtedness, or seeking
additional equity capital. There can be no assurance that any of these
strategies could be effected on satisfactory terms, if at all. See "Management's
Discussion and Analysis of Results of Operations and Financial
Condition -- Liquidity and Capital Resources."
RANKING OF THE NOTES
The Notes are senior obligations of the Company secured by a second
priority lien on substantially all of the assets of the Company and its
subsidiaries securing the New Credit Facility (as defined herein) and rank pari
passu in right of payment with all existing and future indebtedness of the
Company, other than any indebtedness that is expressly subordinated to the
Notes. The Notes are not secured by a pledge of the capital stock of the
Company's subsidiaries (which pledges secure the New Credit Facility). Since the
New Credit Facility is secured by a first priority lien on substantially all of
the Company's assets, the Notes are subordinated to the extent of such security
interests with respect to direct claims against those assets. Future borrowings
under the New Credit Facility (or under other secured lending arrangements) will
be permitted, subject to the applicable terms, conditions and limitations
thereof, including an initial borrowing base of $10 million, and the Indenture.
See "Description of Notes" and "Description of New Credit Facility."
RESTRICTIONS IMPOSED BY TERMS OF INDEBTEDNESS
The Indenture contains certain covenants that, among other things, limit
the ability of the Company and its subsidiaries to make restricted payments, to
incur indebtedness, to create liens, to issue preferred or other capital stock
of subsidiaries, to sell assets, to permit restrictions on dividends and other
payments by subsidiaries to the Company, to consolidate, merge or sell all or
substantially all of its assets, to engage in transactions with affiliates or to
engage in unrelated businesses. In addition, the New Credit Facility contains
other and more restrictive covenants and prohibits the Company from prepaying
the Notes. The New Credit Facility also requires the Company to maintain
specified financial ratios and satisfy certain financial tests. The Company's
ability to meet such financial ratios and tests may be affected by events beyond
its control, and there can be no assurance that the Company will meet such
tests. A breach of any of these covenants could result in an event of default
under the New Credit Facility. In the event of an event of default under the New
11
<PAGE> 16
Credit Facility, the lenders could elect to declare all amounts borrowed under
the New Credit Facility, together with accrued interest, to be immediately due
and payable and to terminate all commitments under the New Credit Facility. If
the Company were unable to repay all amounts declared due and payable, the
lenders could proceed against the collateral granted to them to satisfy the
indebtedness and other obligations due and payable. Substantially all of the
assets of the Company and its subsidiaries will be pledged as security under the
New Credit Facility with priority over the lien of the Notes with respect to
such assets. In addition the capital stock of the Company's subsidiaries does
not secure the Notes (but does secure the New Credit Facility) . If the New
Credit Facility indebtedness were to be accelerated, there can be no assurance
that the assets of the Company and its subsidiaries would be sufficient to repay
in full such indebtedness and the other indebtedness of the Company, including
the Notes. See "Description of the Notes -- Certain Covenants" and "Description
of New Credit Facility."
SECURITY FOR THE NOTES
Pursuant to the Indenture governing the Notes, the Company has granted to
the Trustee for the benefit of the holders of the Notes a second priority lien
on and security interest in substantially all of the property and assets of the
Company and its subsidiaries securing the New Credit Facility (the "Collateral")
to secure the performance of the Company's obligations under the Indenture and
the Notes. The New Credit Facility, as defined in the Indenture, is not limited
as to principal amount, but the amount of loans which could be made available
thereunder is limited by the Indenture's "Limitation on Indebtedness" and
"Limitation on Liens" covenants. See "Description of Notes -- Certain
Covenants." No assurance can be given that the value of the Collateral will on a
given date equal or exceed the principal amount of the Notes, plus accrued and
unpaid interest thereon. By its nature, some or all of the Collateral will be
illiquid and may have no readily ascertainable market value. In connection with
the security arrangements for the Notes, the Company has obtained a title
insurance policy covering only the Bakersfield Properties and not the other
properties mortgaged to secure the Notes. In addition, under the Purchase and
Sale or Exchange Agreement dated April 18, 1994 among the Company, Bakersfield
Energy Resources, Inc., Bakersfield Gas, L.P., and Bakersfield Energy Partners,
L.P., the sellers of the Bakersfield Properties have the right to require the
Company to sell their 25% interest upon the same basis, as to price and other
material terms, as the sale of the Company's interest. Accordingly, there can be
no assurance on how quickly the Collateral could be realized upon. With respect
to property acquired after the Issue Date of the Notes, such property will be
subject to the lien securing the Notes only if (i) such property were acquired
out of the proceeds of a disposition of Collateral constituting an Asset Sale
(as defined in the Indenture) or (ii) such property were pledged to secure the
New Credit Facility.
The lenders under the New Credit Facility have the right, pursuant to the
Intercreditor Agreement (as defined), to make all decisions regarding the timing
of any foreclosure on the Collateral and the arrangements with respect to any
sale or other disposition thereof. In addition, Collateral can be released from
the Lien of the Indenture at the Company's direction provided that the
"Limitation on Sales of Assets" covenant of the Indenture is complied with.
Even if the New Credit Facility were permanently retired, the right of the
Trustee under the Indenture and the Security Documents (as defined in the
Indenture) to foreclose upon and sell Collateral upon the occurrence of an Event
of Default on the Notes is likely to be significantly impaired by applicable
bankruptcy law if a bankruptcy or reorganization case were to be commenced by or
against the Company and one or more of its subsidiaries. Under applicable
bankruptcy law, secured creditors such as the holders of the Notes are
prohibited from foreclosing upon or disposing of a debtor's property without
prior bankruptcy court approval. Moreover, applicable bankruptcy law permits the
debtor to continue to retain and to use collateral even though the debtor is in
default under the applicable debt instruments, provided that the secured
creditor is given "adequate protection." The meaning of the term "adequate
protection" may vary according to circumstances, but it is intended in general
to protect the value of the secured creditor's interest in the collateral. In
view of the lack of a precise definition of the term "adequate protection" and
the broad discretionary powers of a bankruptcy court, it is impossible to
predict how long payments under the Notes could be delayed following
commencement of a bankruptcy case, whether or when the Trustee could obtain or
dispose of the Collateral or
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<PAGE> 17
whether or to what extent holders of the Notes would be compensated for any
delay in payment or loss of value of the Collateral through the requirement of
"adequate protection." If a bankruptcy court were to determine that the value of
the Collateral, after giving effect to the repayment of all amounts owing in
respect of the New Credit Facility, were insufficient to repay all amounts due
in respect of the Notes, the holders of Notes would become holders of
"undersecured claims" and, as such, would be unable to receive payments or
accrual of interests, costs and offerings sold during the debtor's bankruptcy
proceeding.
A substantial portion of the Collateral is comprised of real property. Real
property pledged as security to a lender may be subject to both known and
unforeseen environmental risks. Under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), even a lender who
does not foreclose on a property may be held liable, in certain limited
circumstances, for the costs of remediating or preventing releases or threatened
releases of hazardous substances at a mortgaged property. There may be similar
risks under various state laws and common law theories. Such liability has
seldom been imposed, and finding a lender liable generally has been based on the
lender's having become sufficiently involved in the operations of the borrower
so that its activities are deemed to constitute "participation in the
management." This is the standard of liability set forth in CERCLA and
elaborated on in a number of court decisions. A lender may also be considered to
be a current owner of a property who can be held liable under CERCLA if the
lender takes title to property by foreclosure, although certain courts have held
that mere foreclosure on the borrower's property, in order to protect the
lender's security interest, does not make the lender liable under CERCLA.
A substantial portion of the Collateral is located in California which has
various legal restrictions regarding the disposition of real property
collateral, including the following restrictions. Under California law and case
law interpretations, following a foreclosure sale of real property the right of
a secured party to obtain a deficiency judgment against an obligor (i.e. the
difference between the amount realized on foreclosure and the fair market value
thereof) is limited. No deficiency judgment is permitted under California law
following a non-judicial sale under the power of sale provision in a California
deed of trust. Other California statutes require that a secured party exhaust
the security afforded under the deed of trust by foreclosure before bringing a
contract claim against the obligor for recovery of the debt.
Under the Indenture, the Trustee may, prior to taking certain actions and
exercising certain remedies on behalf of the holders of the Notes, request that
the holders of the Notes provide an indemnification against its costs, expenses
and liabilities. It is possible that CERCLA (or analogous) cleanup costs could
become a liability of the Trustee and cause a loss to any holders that provided
an indemnification. In addition, holders may act directly rather than through a
Trustee, in specified circumstances, in order to pursue a remedy under the
Indenture. If holders exercise that right, they could be deemed to be lenders
that are subject to the risks discussed above.
See "Description of Notes -- Security" for a more detailed description of
the security provisions for the Notes.
UNDEVELOPED PROPERTIES
As of December 31, 1994, approximately 67% of the Company's total proved
reserves were classified as proved undeveloped on a BOE basis. Recovery of such
reserves will require significant capital expenditures and successful drilling
operations. Based on the Company's estimates, aggregate capital expenditures by
the Company of approximately $56.0 million, including $53.0 million on the
Bakersfield Properties, will be required to develop such undeveloped reserves,
of which $11.9 million and $14.5 million are expected to be incurred during the
remainder of 1995 and in 1996, respectively. The Company intends to finance the
development of its properties out of the proceeds from the Unit Offering and
cash from operations and, to the extent necessary, borrowings under the New
Credit Facility. There can be no assurance that the Company's estimates of
capital expenditures will prove accurate, that such sources of financing will be
sufficient to fully fund the Company's planned development activities or that
the development activities will be either successful or completed in accordance
with the Company's development schedule. Additionally, any decrease in current
oil and gas prices or any increase in the costs of development of the Company's
properties could result in a
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<PAGE> 18
significant reduction in the number of wells expected to be drilled. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
HISTORY OF LOSSES
For its fiscal years ended December 31, 1990, 1991, 1992, 1993 and 1994 and
the six months ended June 30, 1995, the Company incurred operating losses
(before dividends and accretion on preferred stock) of $198,000, $1,461,000,
$1,414,000, $1,041,000, $939,000 and $568,000, respectively. There can be no
assurance that the Company will be profitable in the future. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
the Consolidated Financial Statements and Notes thereto.
VOLATILITY OF OIL AND GAS PRICES AND MARKETS
The Company's revenues and earnings are dependent upon prevailing prices
for oil and gas. Historically, the prices for oil and gas have been volatile.
Prices for oil and gas are subject to wide fluctuations in response to changes
in the supply of and demand for oil and gas, market uncertainty and a variety of
additional factors beyond the control of the Company. These factors include the
level of consumer product demand, weather conditions, domestic and foreign
governmental regulation, political conditions in the Middle East, the foreign
supply of oil and gas, the price and availability of alternative fuels and
overall oil and gas market conditions. It is impossible to predict future oil
and gas price movements with any certainty. Although the Company hedges a
substantial portion of its production which provides some protection from price
declines, any substantial or extended decline in the price of oil and gas would
have a material adverse effect on the Company's financial condition and results
of operations, as well as reducing the amount of the Company's oil and gas that
can be produced economically. The posted price for West Texas Intermediate crude
oil (the "WTI price") varied during 1994 from a high of $19.50 per Bbl in June
1994, to a low of $12.25 per Bbl in February 1994. The price for 35(++) gravity
crude oil in the Lost Hills Field (the location of most of the Bakersfield
Properties) as stated in the Chevron U.S.A. Products Company Crude Oil Price
Bulletin varied during 1994 from a high of $16.70 per Bbl in June 1994 to a low
of $10.90 per Bbl in January 1994. Market prices received for crude oil sold in
California have in the recent past been generally lower than WTI prices for
similar quality oil as a result of certain market and regulatory conditions
particular to the California market, including (i) a foreign export ban on
Alaskan oil which results in the supply of most of such oil to the California
market, (ii) the lack of pipelines to transport large quantities of oil produced
in California to other states which limits the ability of producers to respond
to price imbalances between California and other domestic markets and (iii)
fewer independent refiners in California than in other oil producing states
which results in less competition among crude oil purchasers in California than
in other domestic markets. The posted price for gas at Henry Hub, Louisiana
("Henry Hub price") varied during 1994 from a high of $2.39 per MMbtu in
February 1994 to a low of $1.40 per MMBtu in October 1994. Market prices
currently received for gas sold in the California market are generally
approximately the same as Henry Hub prices, except that due to fairly stable
demand as a result of stable weather conditions in California, gas prices in
California do not generally experience fluctuations during the winter and summer
months as wide as those experienced by Henry Hub prices. The Southern California
border monthly average price for natural gas as stated in the Natural Gas
Intelligence Gas Price Index varied during 1994 from a high of $2.21 per MMBtu
in January 1994 to a low of $1.41 per MMBtu in October 1994.
Declines in oil and gas prices, if sustained, could require a writedown of
the book value of the Company's oil and gas properties unless the Company has
sufficient net additions in reserves and/or production to offset the decline in
oil and gas prices. Such declines, if sustained, could also result in a
reduction in the Company's borrowing base under its New Credit Facility, and the
Company would be required to repay the amount by which outstanding advances
exceed the redetermined borrowing base.
RISKS OF FIXED PRICE SALES AND HEDGING CONTRACTS
The Company manages the risk associated with fluctuations in the price of
gas, and to a lesser extent oil, primarily through certain fixed price sales and
hedging contracts. The Company's price risk strategy reduces the Company's
sensitivity to changes in market prices of oil and gas, but is subject to a
number of risks. If the
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Company's reserves are not produced at the rates estimated by the Company due to
inaccuracies in the reserve estimation process, operational difficulties or
regulatory limitations, the Company would be required to satisfy its obligations
under fixed price sales and hedging contracts on potentially unfavorable terms
without the ability to hedge such risk through sales of comparable quantities of
its own production. Further, the terms under which the Company enters into fixed
price sale and hedging contracts are based on assumptions and estimates of
numerous factors such as cost of production and pipeline and other
transportation costs to delivery points. Substantial variations between the
assumptions and estimates used by the Company and actual results experienced
could materially adversely affect the Company's anticipated profit margins and
its ability to manage in the future the risk associated with fluctuations in oil
and gas prices. Additionally, the fixed price sales and hedging contracts limit
the benefits the Company will realize if actual prices rise above the contract
prices.
In addition, fixed price sales and hedging contracts are subject to the
risk that the counterparty may prove unable or unwilling to perform its
obligations under such contracts. Currently, an affiliate of ING Capital is the
counterparty for a significant portion of the Company's hedging contracts.
Although the Company has not experienced and does not anticipate significant
nonperformance by counterparties, such significant nonperformance could have a
material adverse financial effect on the Company.
The Company currently has a hedge contract covering 8,000 Bbls of oil per
month from February 1994 to August 1996 that provides for a floor reference
price of $15.80 per Bbl and a ceiling reference price of $18.75 Bbl. Pursuant to
such hedge contract, the Company pays the difference between $18.75 per Bbl and
the index price (the price for light, sweet crude oil as quoted by the New York
Mercantile Exchange (the "NYMEX")) if the index price is higher than $18.75, and
the Company receives the difference between $15.80 and the index if the index
price is lower than $15.80 per barrel, as determined on a monthly basis. The
settlement price for light, sweet crude oil as quoted by NYMEX on June 30, 1995
was $17.40 per barrel.
The Company has entered into another contract to hedge (i) 300 barrels of
oil per day from May 1995 to April 1996 and (ii) 250 barrels per day from May
1996 to April 1997. The hedge provides for a fixed price of $18.505 per barrel.
Gains or losses under the above agreements are recorded in oil revenues in
periods in which the hedged production occurs and such agreements are settled on
a monthly basis.
The Company currently has a gas sales contract with Cabot pursuant to which
the Company is obligated to sell all of its gas produced from each field of its
South Texas Properties, up to certain maximum amounts determined for each field
and in the aggregate for all such properties, at a price of approximately $1.80
per MMBtu at the wellhead through October 1995, except that the Company will
receive a floor price of $2.05 per MMBtu for a portion of such production from
January 1995 through December 1995. The gas sales contract and the gas hedge
contract were entered into by the general partner of a partnership through which
the Company's South Texas Properties were held until the dissolution of such
partnership in March 1994. During the year ended December 31, 1994, the total
quantity of gas subject to the gas sales contract exceeded the Company's actual
production from the South Texas Properties by approximately 2,185 MMBtu per day
in the aggregate. The Company covered this shortfall in production by purchasing
gas in the spot market and delivered such gas to fulfill the terms of such
contract. Because the average spot market price of gas during 1994 was lower
than the gas sales contract price of $1.80 per MMBtu, the Company realized a
small gain from the sale of the gas purchased to cover the shortfall. The former
general partner and its successor have paid all amounts owed as a result of such
production shortfall and have not requested any reimbursement for such amounts
from the Company. The Company does not believe it owes such former general
partner or its successor any such reimbursement.
In connection with the gas sales contract, beginning in 1995, Cabot has not
paid the $1.80 per MMBtu price for volumes of gas delivered pursuant to the
contract, but rather has paid the spot market price for such gas because Cabot
claims that, as a result of the dissolution of STLP, the gas sales contract was
cancelled effective December 31, 1994. In March 1995, the Company filed a
lawsuit against Cabot to enforce the terms of a gas sales contract because the
Company believes that such contract, as amended, was assigned to the Company as
part of the dissolution of STLP and, therefore, is still in effect. Although the
Company believes
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that it is entitled to recover the amounts owed by Cabot and the court should
enforce the terms of the gas sales contract, the Company cannot predict the
outcome of such lawsuit.
The Company entered into a hedging contract covering approximately 75% of
its projected proved developed oil production from the Bakersfield Properties
until June 30, 1997 at a reference price of $17.25 per Bbl. Pursuant to such
hedge contract, the Company pays half of the difference between $17.25 and the
index price (the NYMEX price for light, sweet crude oil) if the index price is
higher than $17.25 and the Company receives the difference between $17.25 and
the index price if the index price is lower than $17.25, as determined on a
monthly basis. Additionally, the Company entered into a gas sales contract
covering the gas production from the Bakersfield Properties pursuant to which
the Company will receive (i) $1.985 per MMBtu for the delivery of 3,750 MMBtu of
gas per day from October 1, 1994 to September 30, 1995, (ii) $2.0297 per MMBtu
for the delivery of 3,000 MMBtu of gas per day from October 1, 1995 to September
30, 1996 and (iii) $2.0753 per MMBtu for the delivery of 2,500 MMBtu of gas per
day from October 1, 1996 to September 30, 1997.
The Company entered into a firm gas sales contract for 3,750 MMBtu per day
delivered into the SoCal Pipeline System. The term of the contract is one year,
commencing December 1, 1994 and ending November 30, 1995. The composite average
price received by the Company for the gas sold is $1.81 per MMBtu. The Company
also entered into a firm gas sales contract commencing December 1, 1995 and
ending November 30, 1997 for the sale of 3,000 MMBtu per day at an effective
price of $1.70 per MMBtu.
As of June 30, 1995 the Company had approximately 75% of its oil production
and approximately 55% of its gas production committed to such fixed price sales
and hedging contracts based on second quarter 1995 production.
RELIANCE ON ESTIMATES OF PROVED RESERVES
There are numerous uncertainties inherent in estimating quantities of
proved oil and gas reserves, including many factors beyond the control of the
Company. Certain events, including changes in oil and gas prices, production,
acquisitions and future drilling and development, could result in increases or
decreases in estimated proved quantities of oil and gas reserves. In addition,
estimates of the Company's quantities of oil and gas reserves, future net
revenues from proved reserves and the present value thereof are based on certain
assumptions regarding future oil and gas prices, production levels and operating
and development costs that may not prove to be correct. In particular, estimates
of oil and gas reserves, future net revenues from proved reserves and the
present value thereof for the Company's oil and gas properties included in this
Prospectus are based on the assumption that future oil and gas prices remain the
same as oil and gas prices at December 31, 1994. As of December 31, 1994, the
average sales prices used for purposes of such estimates were $16.09 per Bbl of
oil and $2.17 per Mcf of gas with respect to the Bakersfield Properties and
$14.61 per Bbl of oil and $1.72 per Mcf of gas with respect to the Company's
other properties in the aggregate. Although average oil prices with respect to
the Bakersfield Properties and the Company's other properties were, for the year
ended December 31, 1994, significantly lower than oil prices at December 31,
1993, with average oil prices realized by the Company of $15.79 per Bbl and
$16.46 per Bbl, respectively, the gas prices for the Bakersfield Properties and
the Company's other properties were, for the year ended December 31, 1994,
significantly higher than those received at year-end 1993, with average gas
prices realized by the Company of $1.82 per Mcf and $1.77 per Mcf, respectively.
Also assumed is the Company's planned expenditures of approximately $56.0
million in future capital expenditures, including $53.0 million on the
Bakersfield Properties, necessary to develop and realize the value of its
undeveloped proved reserves. Any significant variance in these assumptions could
materially affect the estimated quantity and value of reserves set forth herein.
See "Management's Discussion and Analysis of Financial Condition and Results of
Operations."
DEPENDENCE ON LOCAL OPERATORS
None of the Company's oil and gas properties is operated by the Company. As
a result, the Company has limited control over the operations conducted on such
properties, including the safety and environmental standards used in connection
therewith. Pursuant to the operating agreements between the Company and most
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of its operators, the Company maintains significant control over the nature and
timing of development activities. The operators of approximately 13% of the
Company's proved reserves, however, have control with respect to the nature and
timing of development activities. In such instances, the operators of such
properties could undertake development projects at a time when the Company does
not have the funds required to finance its share of the costs of such projects.
In such event, pursuant to the operating agreements between the Company and most
of such operators, the operator is entitled to receive all cash flow from such
project until it has recovered a multiple of the costs of such project (usually
300% to 400%) prior to the Company's receipt of any production or revenues from
such project or, in the event drilling is necessary to maintain certain
leasehold interests, the Company may be required to forfeit its interests in
such projects. Conversely, the operators of such properties could refuse to
initiate 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, or the operators may initiate
development projects on a slower schedule than that preferred by the Company.
Any of these events could have a significant effect on the Company's anticipated
development activities and financing thereof. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Liquidity and
Capital Resources."
OPERATING HAZARDS AND UNINSURED RISKS
The Company's operations are subject to risks inherent in the oil and gas
industry, such as blowouts, cratering, explosions, uncontrollable flows of oil,
gas or well fluids, fires, pollution and other environmental risks. These risks
could result in substantial losses to the Company due to injury and loss of
life, severe damage to and destruction of property and equipment, pollution and
other environmental damage and suspension of operations. In accordance with
customary industry practice, the Company is not fully insured against all risks
incident to its business. Because of the nature of industry hazards, it is
possible that liabilities for pollution and other damages arising from a major
occurrence could exceed insurance coverage or policy limits. Any such
liabilities could have a materially adverse effect on the Company.
CERTAIN BUSINESS RISKS
The Company intends to continue acquiring oil and gas properties. Although
the Company performs a review of the properties to be acquired that it believes
is consistent with industry practices, such reviews are inherently incomplete.
Generally, it is not feasible to review in-depth every individual property
involved in each acquisition. Ordinarily, the Company will focus its review
efforts on the higher-valued properties and will sample the remainder. However,
even an in-depth review of all properties and records may not necessarily reveal
existing or potential problems nor will it permit a buyer to become sufficiently
familiar with the properties to assess fully their deficiencies and
capabilities. Inspections may not always be performed on every well, and
environmental problems, such as ground water contamination, are not necessarily
observable even when an inspection is undertaken. Furthermore, the Company must
rely on information, including financial, operating and geological information,
provided by the seller of the properties without being able to verify fully all
such information and without the benefit of knowing the history of operations of
all such properties. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital Resources" and
"Business and Properties."
In addition, a high degree of risk of loss of invested capital exists in
almost all exploration and development activities which the Company undertakes.
No assurance can be given that oil or gas will be discovered to replace reserves
currently being developed, produced and sold, or that if oil or gas reserves are
found, they will be of a sufficient quantity to enable the Company to recover
the substantial sums of money incurred in their acquisition, discovery and
development. Drilling activities are subject to numerous risks, including the
risk that no commercially productive oil or gas reservoirs will be encountered.
The cost of drilling, completing and operating wells is often uncertain. The
Company's operations may be curtailed, delayed or cancelled as a result of
numerous factors including title problems, weather conditions, compliance with
governmental requirements and shortages or delays in the delivery of equipment.
The availability of a ready market for the Company's gas production depends on a
number of factors, including, without limitation, the demand for and supply of
natural gas, the proximity of gas reserves to pipelines, the capacity of such
pipelines and government regulations.
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DEPENDENCE ON KEY PERSONNEL
The success of the Company will depend almost entirely upon the ability of
a small group of key executives to manage the business of the Company. Should
one or more of these executives leave the Company or become unable to perform
his duties, no assurance can be given that the Company will be able to attract
competent new management.
COMPETITION
The acquisition, exploration and development of oil and gas properties is a
highly competitive business. Many companies and individuals are engaged in the
business of acquiring interests in and developing onshore oil and gas properties
in the United States. The industry is not dominated by any single competitor or
a small number of competitors. The Company competes with major and independent
oil and gas companies for the acquisition of desirable oil and gas properties,
as well as for the equipment and labor required to operate and develop such
properties. Many of these competitors have financial and other resources
substantially in excess of those available to the Company. Such competitive
disadvantages could adversely affect the Company's ability to acquire desirable
properties or to develop existing properties.
GOVERNMENTAL REGULATION
The Company's business is subject to certain federal, state and local laws
and regulations relating to the exploration for and development and production
of oil and gas, as well as environmental and safety matters. Such laws and
regulations have generally become more stringent in recent years, often imposing
greater liability on a larger number of potentially responsible parties. Because
the requirements imposed by such laws and regulations are frequently changed,
the Company is unable to predict the ultimate cost of compliance with such
requirements and their effect on the Company. See "Business and
Properties -- Regulation."
FRAUDULENT CONVEYANCE
Various fraudulent conveyance laws enacted for the protection of creditors
may apply to the Guarantors' issuance of the Guarantees. To the extent that a
court were to find that (x) a Guarantee was incurred by a Guarantor with intent
to hinder, delay or defraud any present or future creditor or the Guarantor
contemplated insolvency with a design to prefer one or more creditors to the
exclusion in whole or in part of others or (y) such Guarantor did not receive
fair consideration or reasonable equivalent value for issuing its Guarantee and
such Guarantor (i) was insolvent, (ii) was rendered insolvent by reason of the
issuance of such Guarantee, (iii) was engaged or about to engage in a business
or transaction for which the remaining assets of such Guarantor constituted
unreasonably small capital to carry on its business or (iv) 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 such Guarantee in favor of
the Guarantor's creditors. Among other things, a legal challenge of a Guarantee
on fraudulent conveyance grounds may focus on the benefits, if any, realized by
the Guarantor as a result of the issuance by the Company of the Notes. To the
extent any Guarantees were avoided as a fraudulent conveyance or held
unenforceable for any other reason, holders of the Notes would cease to have any
claim in respect of such Guarantor and would be creditors solely of the Company
and any Guarantor whose Guarantee was not avoided or held unenforceable. In such
event, the claims of the holders of the Notes against the issuer of an invalid
Guarantee would be subject to the prior payment of all liabilities of such
Guarantor. There can be no assurance that, after providing for all prior claims,
there would be sufficient assets to satisfy the claims of the holders of the
Notes relating to any voided portions of any of the Guarantees.
The measure of insolvency for purposes of the foregoing considerations will
vary depending upon the law applied in any such proceeding. Generally, however,
the Guarantors may be considered insolvent if the sum of their debts, including
contingent liabilities, was greater than the fair marketable value of all of
their assets at a fair valuation or if the present fair marketable value of
their assets was less than the amount that would be required to pay their
probable liability on their existing debts, including contingent liabilities, as
they become absolute and mature.
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Based upon financial and other information, the Company believes that the
Notes and the Guarantees are being incurred for proper purposes and in good
faith and that the Company and each Guarantor is solvent and will continue to be
solvent after issuing the Notes or its Guarantee, as the case may be, will have
sufficient capital for carrying on its business, if any, after such issuance and
will be able to pay its debts as they mature. There can be no assurance,
however, that a court passing on such standards would agree with the Company.
LACK OF PUBLIC MARKET
Prior to the date hereof, there has only been a private institutional
trading market for the Series A Notes. Although the Initial Purchasers have
advised the Company that they intend to make a market in the Series A Notes and,
if issued, the Exchange Notes, they are not obligated to do so and they may
discontinue such market-making at any time without notice. In addition, such
market-making activity may be limited during the Exchange Offer. Although the
Series A Notes are eligible for trading in the PORTAL market, there can be no
assurance as to the development of any market or the liquidity of any market
that may develop for the Series A Notes or the Exchange Notes. The Commission
has broad discretion to determine whether the registration statement of which
this Prospectus forms a part will be declared effective and may delay or deny
the effectiveness of such registration statement filed by the Company for a
variety of reasons. Failure to have the registration statement declared
effective could adversely affect the liquidity and price of the Series A Notes.
If the Company does not comply with its registration obligations with respect to
the Series A Notes in a timely manner, it will be required to pay additional
interest (in addition to the scheduled interest) until such obligations are
complied with. See "Exchange Offer, Registration Rights."
ORIGINAL ISSUE DISCOUNT CONSEQUENCES
If a bankruptcy case is commenced by or against the Company under the
United States Bankruptcy Code (the "Bankruptcy Code"), the claim of a holder of
any of the Notes with respect to the principal amount thereof may be limited to
an amount equal to the sum of (i) the initial offering price allocable to the
Notes and (ii) that portion of the original issue discount which is not deemed
to constitute "unmatured interest" for purposes of the Bankruptcy Code. Any
original issue discount that was not amortized as of any such bankruptcy filing
would constitute "unmatured interest."
19
<PAGE> 24
PURPOSE OF THE EXCHANGE OFFER
In connection with the initial sale of the Series A Notes, the Company
agreed, subject to certain conditions, to use its best efforts to conduct the
Exchange Offer. The Company's purpose in making the Exchange Offer is to comply
with such agreement and to avoid the increase in interest rate on the Series A
Notes which would occur if the Exchange Offer were not duly and timely
consummated. See "Description of the Notes -- Registration Rights Agreement."
The Exchange Offer should provide holders of Series A Notes with the ability to
effect, for federal income tax purposes, a tax-free exchange of such Series A
Notes, which are subject to trading limitations, for Exchange Notes that will
not be subject to such restrictions.
The Exchange Offer provides holders of Series A Notes with Exchange Notes
that will generally be freely transferable by holders thereof (other than any
holder who is an "affiliate" or "promoter" of the Company within the meaning of
Rule 405 under the Securities Act), who may offer for resale, resell or
otherwise transfer such Exchange Notes without complying with the registration
and prospectus delivery provisions of the Securities Act, provided that such
Exchange Notes are acquired in the ordinary course of each such holder's
business and such holders have no arrangement or understanding with any person
to participate in a distribution of the Exchange Notes. Each holder who
participates in the Exchange Offer will be required to represent that any
Exchange Notes received by it will be acquired in the ordinary course of its
business, that at the time of consummation of the Exchange Offer such holder
will have no arrangement or understanding with any person to participate in the
distribution of the Exchange Notes in violation of the provisions of the
Securities Act, and that such holder is not an affiliate of the Company within
the meaning of the Securities Act.
RESALE OF THE EXCHANGE NOTES
With respect to resales of Exchange Notes, based on interpretations by the
staff of the Commission set forth in no-action letters issued to third parties,
the Company believes that a holder or other person who receives Exchange Notes,
whether or not such person is the holder (other than a person that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act), who receives Exchange Notes in exchange for Series A Notes in the ordinary
course of business and who is not participating, does not intend to participate,
and has no arrangement or understanding with any person to participate, in the
distribution of the Exchange Notes, will be allowed to resell the Exchange Notes
to the public without further registration under the Securities Act and without
delivering to the purchasers of the Exchange Notes a prospectus that satisfies
the requirements of Section 10 of the Securities Act. However, if any holder
acquires Exchange Notes in the Exchange Offer for the purpose of distributing or
participating in a distribution of the Exchange Notes, such holder cannot rely
on the position of the staff of the Commission enunciated in such no-action
letters or any similar interpretive letters, and must comply with the
registration and prospectus delivery requirements of the Securities Act (with
such prospectus containing the selling securityholder information required by
Item 507 of Regulation S-K under the Securities Act) in connection with any
resale transaction, unless an exemption from registration is otherwise
available. Further, each Participating Broker-Dealer that receives Exchange
Notes for its own account in exchange for Series A Notes, where such Series A
Notes were acquired by such Participating Broker-Dealer as a result of
market-making activities or other trading activities, may be a statutory
underwriter and must acknowledge that it will deliver a prospectus meeting the
requirements of the Securities Act (which may be this Prospectus, as it may be
amended or supplemented from time to time) in connection with any resale of such
Exchange Notes.
As contemplated by these no-action letters and the Registration Rights
Agreement, each holder accepting the Exchange Offer is required to represent to
the Company in the Letter of Transmittal that (i) the Exchange Notes are to be
acquired by the holder or the person receiving such Exchange Notes, whether or
not such person is the holder, in the ordinary course of business, (ii) the
holder or any such other person (other than a broker-dealer referred to in the
next sentence) is not engaging and does not intend to engage, in the
distribution of the Exchange Notes, (iii) the holder or any such other person
has no arrangement or understanding with any person to participate in the
distribution of the Exchange Notes, and (iv) neither holder nor any such other
person is an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act, and (v) the holder or any such other person acknowledges that if
such holder or other person
20
<PAGE> 25
participates in the Exchange Offer for the purpose of distributing the Exchange
Notes it must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any resale of the Exchange Notes and
cannot rely on those no-action letters. As indicated above, each Participating
Broker-Dealer that receives an Exchange Note for its own account in exchange for
Series A Notes must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. For a description of the procedures for
such resales by Participating Broker-Dealers, see "-- Plan of Distribution."
PLAN OF DISTRIBUTION
Each Participating Broker-Dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Participating Broker-Dealer in connection with resales of Exchange Notes
received in exchange for Series A Notes where such Series A Notes were acquired
as a result of market-making activities or other trading activities. The Company
has agreed that it will make this Prospectus, as amended or supplemented,
available to any Participating Broker-Dealer for use in connection with any such
resale during the period required by the Securities Act.
The Company will not receive any proceeds from any sales of the Exchange
Notes by Participating Broker-Dealers. Exchange Notes received by Participating
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 Exchange 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 the purchaser or through brokers
or dealers who may receive compensation in the form of commissions or
concessions from any such Participating Broker-Dealer and/or the purchasers of
any such Exchange Notes. Any Participating Broker-Dealer that resells the
Exchange Notes that were received by it for its own account pursuant to the
Exchange Offer and any broker or dealer that participates in a distribution of
such Exchange Notes may be deemed to be an "underwriter" within the meaning of
the Securities Act and any profit on any such resale of Exchange 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 Participating Broker-Dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
The Company will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any Participating Broker-Dealer
that requests such documents in the Letter of Transmittal.
THE EXCHANGE OFFER
TERMS OF THE OFFER
The Company hereby offers, upon the terms and conditions set forth herein
and in the related Letter of Transmittal, to exchange Exchange Notes for a like
principal amount of outstanding Series A Notes. An aggregate of $65 million
principal amount of Series A Notes are outstanding. The Exchange Offer is not
conditioned upon any minimum amount of Series A Notes being tendered.
The Exchange Offer will expire at 5:00 p.m., New York City time, on
, 1995, unless extended. The term "Expiration Date" means 5:00
p.m., New York City time, on , 1995, unless the Company, in its
sole discretion, notifies the Exchange Agent that the period of the Exchange
Offer has been extended, in which case the term "Expiration Date" means the
latest time and date on which the Exchange Offer as so extended will expire. See
"-- Expiration and Extension."
Holders of Series A Notes who wish to exchange Series A Notes for Exchange
Notes and who validly tender Series A Notes to the Exchange Agent or validly
tender Series A Notes by complying with the book-entry transfer procedures
described below and, in each case, who furnish the Letter of Transmittal and any
21
<PAGE> 26
other required documents to the Exchange Agent, will either have Exchange Notes
mailed to them by the Exchange Agent or have the Exchange Notes credited to
their account in accordance with the book-entry transfer procedures described
below, promptly after such tender is accepted by the Company. Subject to the
terms and conditions of the Exchange Offer, Series A Notes which have been
validly tendered prior to the Expiration Date will be accepted on or promptly
after the Expiration Date. Subject to the applicable rules of the Commission,
the Company, however, reserves the right, prior to the first acceptance of
tendered Series A Notes, to delay acceptance of tendered Series A Notes, or to
terminate the Exchange Offer, subject to the provisions of Rule 14e-1(c) under
the Exchange Act, which requires that a tender offeror pay the consideration
offered or return the tendered securities promptly after the termination or
withdrawal of a tender offer.
In addition, the Company reserves the right to waive any condition or
otherwise amend the Exchange Offer in any respect consistent with the Indenture
and the Registration Rights Agreement prior to the acceptance of tendered Series
A Notes. If any amendment by the Company of the Exchange Offer or waiver by the
Company of any condition thereto constitutes a material change in the
information previously disclosed to the holders of Series A Notes, the Company
will, in accordance with the applicable rules of the Commission, disseminate
promptly disclosure of such change in a manner reasonably calculated to inform
such holders of such change. If it is necessary to permit an adequate
dissemination of information regarding such material change, the Company will
extend the Exchange offer to permit an adequate time for holders of Series A
Notes to consider the additional information.
CERTAIN EFFECTS OF THE EXCHANGE OFFER
Because the Exchange Offer is for any and all Series A Notes, the number of
Series A Notes tendered and exchanged in the Exchange Offer will reduce the
principal amount of Series A Notes outstanding. As a result, the liquidity of
any remaining Series A Notes may be substantially reduced. The Series A Notes
are currently eligible for sale pursuant to Rule 144A through the PORTAL System
of the National Association of Securities Dealers, Inc. Because the Company
anticipates that most holders of Series A Notes will elect to exchange such
Series A Notes for Exchange Notes due to the absence of restrictions on the
resale of Exchange Notes under the Securities Act, the Company anticipates that
the liquidity of the market for any Series A Notes remaining after the
consummation of the Exchange Offer may be substantially limited.
EXPIRATION AND EXTENSION
The Exchange Offer will expire at 5:00 p.m., New York City time, on
, 1995, unless extended by the Company. The Exchange Offer may be
extended by oral or written notice from the Company to the Exchange Agent at any
time or from time to time, on or prior to the date then fixed for the expiration
of the Exchange Offer. Public announcement of any extension of the Exchange
Offer will be timely made by the Company, but, unless otherwise required by law
or regulation, the Company will not have any obligation to communicate such
public announcement other than by making a release to the Dow Jones News
Service.
CONDITIONS
The Exchange Offer is subject to the following conditions: (i) the Exchange
Offer does not violate applicable law or any applicable interpretation of the
staff of the Commission, (ii) no action or proceeding is instituted or
threatened in any court or by any governmental agency which might materially
impair the ability of the Company or the Guarantors to proceed with the Exchange
Offer and no material adverse development has occurred in any existing action or
proceeding with respect to the Company or the Guarantors and (iii) all
governmental approvals have been obtained, which approvals the Company and the
Guarantors deem necessary for the consummation of the Exchange Offer.
REGISTRATION RIGHTS
Effective July 24, 1995, the Company entered into the Registration Rights
Agreement with the Initial Purchasers pursuant to which the Company has, for the
benefit of the holders of the Notes, at the Company's
22
<PAGE> 27
cost, agreed to (i) file the registration statement of which this Prospectus
forms a part (the "Exchange Offer Registration Statement"), under the Securities
Act with respect to the Exchange Offer which constitutes the Company's offer to
exchange the Series A Notes for Exchange Notes, which will have terms identical
in all material respects to the Series A Notes (except that the Exchange Notes
will not contain terms with respect to transfer restrictions and will not
contain certain provisions relating to an increase in the interest rate which
were applicable to the Series A Notes in certain circumstances relating to the
timing of the Exchange Offer), and (ii) cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act within 120 days
after the Issue Date. The Company will keep the Exchange Offer open for not less
than 30 calendar days (or longer if required by applicable law) after the date
notice of the Exchange Offer is mailed to the holders of the Series A Notes.
In the event that (i) any changes in law or the applicable interpretations
of the staff of the Commission do not permit the Company to effect the Exchange
Offer, (ii) the Exchange Offer is not consummated within 150 days of the Issue
Date, (iii) in certain circumstances, certain holders of unregistered Exchange
Notes so request within 120 days after the consummation of the Exchange Offer or
(iv) in the case of any holder that participates in the Exchange Offer, such
holder does not receive Exchange Notes on the date of the exchange that may be
sold without restriction under state and federal securities laws (other than due
solely to the status of such holder as an affiliate of the Company within the
meaning of the Securities Act) and so notifies the Company within 60 days after
such holder first becomes aware of such restriction and provides the Company
with a reasonable basis for its conclusion, in the case of each of clauses
(i)-(iv) of this sentence, then the Company will promptly deliver to the holders
and the Trustee written notice thereof and, at its cost, (a) as promptly as
practicable, file a shelf registration statement covering resales of the Notes
(the "Shelf Registration Statement"), (b) use its best efforts to cause the
Shelf Registration Statement to be declared effective under the Securities Act
and (c) use its best efforts to keep the Shelf Registration Statement effective
until three years after its effective date, or such shorter period ending when
(i) all Notes covered by the Shelf Registration Statement have been sold in the
manner set forth and as contemplated therein or (ii) a subsequent Shelf
Registration Statement covering all unregistered Notes has been declared
effective under the Securities Act. The Company will, in the event of the filing
of a Shelf Registration Statement, provide to each holder of the Notes copies of
the prospectus which is a part of the Shelf Registration Statement, notify each
such holder when the Shelf Registration Statement for the Notes has become
effective and take certain other actions as are required to permit unrestricted
resales of the Notes. A holder of Notes that sells such Notes pursuant to the
Shelf Registration Statement generally will be required to be named as a selling
securityholder 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 a
holder (including certain indemnification obligations). In addition, each holder
of the Notes will be required to deliver information to be used in connection
with the Shelf Registration Statement and to provide comments on the Shelf
Registration Statement within the time periods set forth in the Registration
Rights Agreement in order to have its Notes included in the Shelf Registration
Statement and to benefit from the provisions regarding liquidated damages set
forth therein.
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 without charge by writing to the Company
at 4400 Post Oak Parkway, Suite 2220, Houston, Texas 77027, Attention:
Secretary.
HOW TO TENDER
A holder of Series A Notes may tender Series A Notes by (a) properly
completing and signing the Letter of Transmittal or a facsimile thereof (all
references in this Prospectus to the Letter of Transmittal shall be deemed to
include a facsimile thereof) and delivering the same, together with the Series A
Notes being tendered (or a confirmation of an appropriate book-entry transfer)
to the Exchange Agent on or prior to the Expiration Date or (b) requesting a
broker, dealer, bank, trust company or other nominee to effect the transaction
for such holder prior to the Expiration Date.
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<PAGE> 28
If Exchange Notes are to be delivered to an address other than that of the
registered holder appearing on the note register (the "Note Register")
maintained by the registrar of the Notes, the signature on the Letter of
Transmittal must be guaranteed by a commercial bank or trust company having an
office or correspondent in the United States, or by a member firm of a national
securities exchange or the National Association of Securities Dealers, Inc. (any
of the foregoing is hereinafter referred to as an "Eligible Institution").
Exchange Notes will not be issued in the name of a person other than that of the
registered holder of the Series A Notes appearing on the Note Register.
The Exchange Agent will establish an account with respect to the Series A
Notes at DTC within two business days after the date of this Prospectus, and any
financial institution which is a participant in DTC may make book-entry delivery
of the Series A Notes by causing DTC to transfer such Series A Notes into the
Exchange Agent's account in accordance with DTC's procedure for such transfer.
Although delivery of Series A Notes may be effected through book-entry transfer
into the Exchange Agent's account at DTC, the Letter of Transmittal, with any
required signature guarantees and any other required documents, must in any case
be transmitted to and received by the Exchange Agent on or prior to the
Expiration Date at one of its addresses set forth below under "Exchange Agent",
or the guaranteed delivery procedure described below must be complied with.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
All references in this Prospectus to deposit or delivery of Series A Notes shall
be deemed to include DTC's book-entry delivery method.
Notwithstanding the foregoing, any financial institution that is a
participant in the Depositary's Book-Entry Transfer Facility system may make
book-entry delivery of the Existing Notes by causing the Depositary to transfer
such Existing Notes into the Exchange Agent's account in accordance with the
Depositary's Automated Tender Offer Program ("ATOP") procedures for such
book-entry transfers. However, the exchange for the Existing Notes so tendered
will only be made after timely confirmation (a "Book-Entry Confirmation") of
such Book-Entry Transfer of Existing Notes into the Exchange Agent's account,
and timely receipt by the Exchange Agent of an Agent's Message (as such term is
defined in the next sentence) and any other documents required by the Letter of
Transmittal. The term "Agent's Message" means a message, transmitted by the
Book-Entry Transfer Facility and received by the Exchange Agent and forming a
part of a Book-Entry Confirmation, which states that the Book-Entry Transfer
Facility has received an express acknowledgement from a participant tendering
Existing Notes that is the subject of such Book-Entry Confirmation that such
participant has received and agrees to be bound by the terms of the Letter of
Transmittal, and that the Company may enforce such agreement against such
participant.
THE METHOD OF DELIVERY OF SERIES A NOTES AND ALL OTHER DOCUMENTS, INCLUDING
DELIVERY THROUGH DTC, IS AT THE ELECTION AND RISK OF THE HOLDER. IF SENT BY
MAIL, IT IS RECOMMENDED THAT REGISTERED MAIL, RETURN RECEIPT REQUESTED, BE USED,
AND PROPER INSURANCE BE OBTAINED.
If a holder desires to tender Series A Notes pursuant to the Exchange Offer
and such holder's Series A Notes are not immediately available or time will not
permit all of the above documents to reach the Exchange Agent prior to the
Expiration Date, or such holder cannot complete the procedure of book-entry
transfer on a timely basis, such tender may be effected if the following
conditions are satisfied:
(a) such tenders are made by or through an Eligible Institution;
(b) a properly completed and duly executed Notice of Guaranteed
Delivery, in substantially the form provided by the Company, is received by
the Exchange Agent as provided below on or prior to the Expiration Date;
and
(c) the Series A Notes, in proper form for transfer (or confirmation
of book-entry transfer of such Series A Notes into the Exchange Agent's
account at DTC as described above), together with a properly completed and
duly executed Letter of Transmittal and all other documents required by the
Letter of Transmittal, are received by the Exchange Agent within five New
York Stock Exchange, Inc. trading days after the date of execution of such
Notice of Guaranteed Delivery.
24
<PAGE> 29
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by facsimile transmission or mailed to the Exchange Agent and must include a
guarantee by an Eligible Institution in the form set forth in such Notice of
Guaranteed Delivery.
A tender will be deemed to have been received as of the date when the
tendering holder's duly signed Letter of Transmittal accompanied by Series A
Notes (or a timely confirmation received of a book-entry transfer of Series A
Notes into the Exchange Agent's account at DTC) or a Notice of Guaranteed
Delivery from an Eligible Institution is received by the Exchange Agent.
Issuances of Exchange Notes in exchange for Series A Notes tendered pursuant to
a Notice of Guaranteed Delivery by an Eligible Institution will be made only
against delivery of the Letter of Transmittal (and any other required documents)
and the tendered Series A Notes (or a timely confirmation received of a
book-entry transfer of Series A Notes into the Exchange Agent's account at DTC)
with the Exchange Agent.
Partial tenders of Series A Notes may be made only if (i) the principal
amount tendered is equal to $1,000 or an integral multiple thereof; and (ii) the
remaining untendered portion of such Series A Note is in a principal amount of
$250,000, or any integral multiple of $1,000 in excess of such amount. Holders
tendering less than the entire principal amount of any Series A Note they hold
in accordance with the foregoing restrictions must appropriately indicate such
fact on the Letter of Transmittal accompanying the tendered Series A Note.
With respect to tenders of Series A Notes, the Company reserves full
discretion to determine whether the documentation is complete and generally to
determine all questions as to tenders, including the date of receipt of a
tender, the propriety of execution of any document, and other questions as to
the validity, form, eligibility or acceptability of any tender. The Company
reserves the right to reject any tender not in proper form or otherwise not
valid or the acceptance of exchange of which may, in the opinion of the
Company's counsel, be unlawful or to waive any irregularities or conditions, and
the Company's interpretation of the terms and conditions of the Exchange Offer
(including the instructions on the Letter of Transmittal) will be final. The
Company shall not be obligated to give notice of any defects or irregularities
in tenders and shall not incur any liability for failure to give any such
notice. The Exchange Agent may, but shall not be obligated to, give notice of
any irregularities or defects in tenders, and shall not incur any liability for
any failure to give any such notice. Series A Notes shall not be deemed to have
been duly or validly tendered unless and until all defects and irregularities
have been cured or waived. All improperly tendered Series A Notes, as well as
Series A Notes in excess of the principal amount tendered for exchange, will be
returned (unless irregularities and defects are timely cured or waived), without
cost to the tendering holder (or, in the case of Series A Notes delivered by
book-entry transfer within DTC, will be credited to the account maintained
within DTC by the participant in DTC which delivered such shares), promptly
after the Expiration Date.
TERMS AND CONDITIONS OF THE LETTER OF TRANSMITTAL
The Letter of Transmittal contains, among other things, certain terms and
conditions which are summarized below and are part of the Exchange Offer.
Each holder who participates in the Exchange Offer will be required to
represent that any Exchange Notes received by it will be acquired in the
ordinary course of its business, that at the time of consummation of the
Exchange Offer such holder will have no arrangement or understanding with any
person to participate in the distribution of the Exchange Notes in violation of
the provision of the Securities Act, and that such holder is not an affiliate
within the meaning of the Securities Act.
Series A Notes tendered in exchange for Exchange Notes (or a timely
confirmation of a book-entry transfer of such Series A Notes into the Exchange
Agent's account at DTC) must be received by the Exchange Agent, with the Letter
of Transmittal and any other required documents, by 5:00 p.m., New York City
time, on or prior to , 1995, unless extended, or within the time
periods set forth above in "-- How to Tender" pursuant to a Notice of Guaranteed
Delivery from an Eligible Institution. The party tendering the Series A Notes
for exchange (the "Holder") sells, assigns and transfers the Series A Notes to
the Exchange Agent, as agent of the Company, and irrevocably constitutes and
appoints the Exchange Agent as the Holder's agent and attorney-in-fact to cause
the Series A Notes to be transferred and exchanged. The
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<PAGE> 30
Holder warrants that it has full power and authority to tender, exchange, sell,
assign and transfer the Series A Notes and to acquire the Exchange Notes
issuable upon the exchange of such tendered Series A Notes, the Exchange Agent,
as agent of the Company, will acquire good and unencumbered title to the
tendered Series A Notes, free and clear of all liens, restrictions, charges and
encumbrances, and that the Series A Notes tendered for exchange are not subject
to any adverse claims when accepted by the Exchange Agent, as agent of the
Company. The Holder also warrants and agrees that it will, upon request, execute
and deliver any additional documents deemed by the Company or the Exchange Agent
to be necessary or desirable to complete the exchange, sale, assignment and
transfer of the Series A Notes. All authority conferred or agreed to be
conferred in the Letter of Transmittal by the Holder will survive the death or
incapacity of the Holder and any obligation of the Holder shall be binding upon
the heirs, personal representatives, successors and assigns of such Holder.
Signature(s) on the Letter of Transmittal will be required to be guaranteed
as set forth above in "-- How to Tender." All questions as to the validity,
form, eligibility (including time of receipt) and acceptability of any tender
will be determined by the Company, in its sole discretion, and such
determination will be final and binding. Unless waived by the Company,
irregularities and defects must be cured by the Expiration Date. The Company
will pay all security transfer taxes, if any, applicable to the transfer and
exchange of Series A Notes tendered.
WITHDRAWAL RIGHTS
All tenders of Series A Notes may be withdrawn at any time prior to
acceptance thereof on the Expiration Date. To be effective, a notice of
withdrawal must be timely received by the Exchange Agent at the address set
forth below under "-- Exchange Agent." Any notice of withdrawal must specify the
person named in the Letter of Transmittal as having tendered the Series A Notes
to be withdrawn. If the Series A Notes have been physically delivered to the
Exchange Agent, the tendering holder must also submit the serial number shown on
the particular Series A Notes to be withdrawn. If the Series A Notes have been
delivered pursuant to the book-entry procedures set forth above under "--How to
Tender," any notice of withdrawal must specify the name and number of the
participant's account at DTC to be credited with the withdrawn Series A Notes.
The Exchange Agent will return the properly withdrawn Series A Notes as soon as
practicable following receipt of notice of withdrawal. All questions as to the
validity, including time of receipt, of notices of withdrawals will be
determined by the Company, and such determinations will be final and binding on
all parties.
ACCEPTANCE OF TENDERS
Subject to the terms and conditions of the Exchange Offer, including the
reservation of certain rights by the Company, Series A Notes tendered (either
physically or through book-entry delivery as described in "-- How to Tender")
with a properly executed Letter of Transmittal and all other required
documentation, and not withdrawn, will be accepted promptly after the Expiration
Date. Subject to such terms and conditions, Exchange Notes to be issued in
exchange for properly tendered Series A Notes will either be mailed by the
Exchange Agent or credited to the holder's account in accordance with the
appropriate book-entry procedures promptly after the acceptance of the properly
tendered Series A Notes. Acceptance of Series A Notes will be effected by the
delivery of a notice to that effect by the Company to the Exchange Agent.
Subject to the applicable rules of the Commission, the Company, however,
reserves the right, prior to the acceptance of tendered Series A Notes, to delay
acceptance of tendered Series A Notes upon the occurrence of any of the
conditions set forth above under the caption "-- Conditions." The Company
confirms that its reservation of the right to delay acceptance of tendered
Series A Notes is subject to the provisions of Rule 14e-1(c) under the 1934 Act
which requires that a tender offeror pay the consideration offered or return the
tendered securities promptly after the termination or withdrawal of a tender
offer.
Although the Company does not currently intend to do so, if it modifies the
terms of the Exchange Offer, such modified terms will be available to all
holders of Series A Notes, whether or not their Series A Notes have been
tendered prior to such modification. Any material modification will be disclosed
in accordance with
26
<PAGE> 31
the applicable rules of the Commission and, if required, the Exchange Offer will
be extended to permit holders of Series A Notes adequate time to consider such
modification.
The tender of Series A Notes pursuant to any one of the procedures set
forth in "-- How to Tender" will constitute an agreement between the tendering
holder and the Company upon the terms and subject to the conditions of the
Exchange Offer.
EXCHANGE AGENT
Texas Commerce Bank National Association has been appointed as Exchange
Agent for the Exchange Offer. Letters of Transmittal must be addressed to the
Exchange Agent as follows:
<TABLE>
<S> <C>
Facsimile Transmission Address for Mailing:
Telephone Number: P.O. Box 2320
(214) 672-5744 Dallas, TX 75221-2320
Attn: Frank Ivins
Confirm by Telephone: Address for Courier and Hand Deliveries:
(800) 275-2048 One Main Place
1201 Main St.
Dallas, TX 75202
Attn: Frank Ivins
</TABLE>
Delivery to other than the above address will not constitute valid
delivery.
SOLICITATION OF TENDERS; EXPENSES
Except as described above under "-- Exchange Agent," the Company has not
retained any agent in connection with the Exchange Offer and will not make any
payments to brokers, dealers or other persons for soliciting or recommending
acceptances of the Exchange Offer. The Company will, however, reimburse the
Exchange Agent for its reasonable out-of-pocket expenses in connection
therewith. The Company will also pay brokerage houses and other custodians,
nominees and fiduciaries the reasonable out-of-pocket expenses incurred by them
in forwarding copies of this Prospectus and related documents to the beneficial
owners of the Series A Notes and in handling or forwarding tenders for their
customers.
27
<PAGE> 32
USE OF PROCEEDS
No new net proceeds will be received by the Company as a result of the
Exchange Offer.
The net proceeds to the Company from the Unit Offering were approximately
$61.6 million after deducting discounts and estimated offering expenses payable
by the Company. The Company utilized a portion of the net proceeds to repay all
amounts outstanding under the Prior Credit Facility and the Bridge Loan; redeem
its outstanding shares of Series D Preferred Stock; and acquire the Carried
Interest Wells; and plans to utilize the balance primarily to finance a portion
of the development of the Bakersfield Properties. The following table
illustrates the sources and uses of funds assuming the offering had occurred on
June 30, 1995.
<TABLE>
<CAPTION>
AMOUNT
-----
(DOLLARS IN MILLIONS)
<S> <C>
SOURCES OF FUNDS:
Units(1).................................................................. $61.6
-----
Total Sources..................................................... $61.6
=====
USES OF FUNDS:
Retirement of Prior Credit Facility(2).................................... $34.3
Retirement of Bridge Loan(3).............................................. 5.0
Redemption of Series D Preferred Stock(4)................................. 11.0
Purchase Carried Interest Wells........................................... 2.3
Development of Bakersfield Properties..................................... 9.0
-----
Total Uses........................................................ $61.6
=====
</TABLE>
- ---------------
(1) The Units consisted of an aggregate $65.0 million principal face amount of
Notes, and Warrants to purchase shares of Common Stock with an aggregate
ascribed value of $1.7 million.
(2) Amounts outstanding under the Prior Credit Facility bore interest at an
annual rate of LIBOR plus 3% prior to repayment. The Prior Credit Facility
had a final maturity date of March 31, 2001.
(3) The Bridge Loan bore interest presently at an annual rate of LIBOR plus 5.5%
prior to repayment. The lender extended the final maturity date of the
Bridge Loan from July 1 to October 1, 1995.
(4) In June 1994, the Company issued 100,000 shares of Series D Preferred Stock,
with detachable warrants, at a price of $100.00 per share for an aggregate
value of $10.0 million. An additional 9,300 shares of Series D Preferred
Stock were issued as dividends since the original issuance thereof. The
proceeds of the Series D Preferred Stock issuance were used to finance a
portion of the purchase price of the Bakersfield Properties.
The Company anticipates total capital expenditures of approximately $53.0
million to fully develop the proved reserves of the Bakersfield Properties,
which will comprise the drilling of 161 wells in locations which are currently
identified as proved undeveloped. Based on current plans, the Company expects to
make capital expenditures with respect to the Bakersfield Properties of $17.1
million during the 12 months following the Unit Offering, of which approximately
$10.9 million is expected to be spent during the second half of 1995, and
approximately $6.2 million is expected to be spent during the first half of
1996. During the second half of 1996 and all of 1997, the Company intends to
make additional capital expenditures of $6.2 million and $8.2 million,
respectively. Thereafter, the Company expects to spend approximately $21.5
million to complete the development of the proved reserves of the Bakersfield
Properties. These expenditures will finance 38 wells in the second half of 1995,
48 in 1996, 33 in 1997 and 42 thereafter and will include the implementation of
a waterflood project which is expected to occur in 1998. The Company will use a
total of approximately $9.0 million of the net proceeds of the Unit Offering to
finance the development of the Bakersfield Properties during the second half of
1995. In addition to such proceeds, management intends to use cash flow from
operations and borrowings under the New Credit Facility to finance its pro rata
share of the costs incurred in the development of the Bakersfield Properties.
During the fourth quarter of 1994, the Company entered into an agreement
with Bakersfield Energy, whereby the existing provisions of the operating
agreement were amended relative to the drilling of the Carried Interest Wells in
the fourth quarter of 1994 to provide that Bakersfield Energy would retain 100%
of the net revenue from the Carried Interest Wells until it had recovered a
payout of 110% of the drilling, completion and operating costs, net to the
Company's 75% working interest in the Carried Interest Wells and then the
Company would revert to a 75% working interest position in the Carried Interest
Wells. The Company used approximately $2.3 million of the net proceeds from the
Unit Offering to accelerate the payout of the drilling costs, the effect of
which allowed the Company to revert to a 75% working interest position in the
Carried Interest Wells.
28
<PAGE> 33
CAPITALIZATION
The following table sets forth the total consolidated capitalization of the
Company at June 30, 1995, and as adjusted to give effect to the consummation of
the Unit Offering and the initial application of the estimated net proceeds
therefrom, as described under "Use of Proceeds." This table should be read in
conjunction with the consolidated financial statements of the Company and the
related notes and other financial information included elsewhere in this
Properties.
<TABLE>
<CAPTION>
JUNE 30, 1995
------------------------
ACTUAL AS ADJUSTED
-------- -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Cash and cash equivalents........................................... $ 1,254 $ 10,230
======== =========
Total debt, including current maturities:
Prior Credit Facility(1).......................................... $ 34,340 $ --
Bridge Loan....................................................... 5,000 --
14 7/8% Senior Secured Notes due 2002............................. -- 62,989(2)
-------- -----------
Total debt................................................ 39,340 62,989
-------- -----------
Series D Preferred Stock............................................ 8,949 --
Stockholders' equity:
Preferred stock, $.01 par value --
1,500,000 shares authorized;
65,000 shares outstanding...................................... 1 1
Common stock, $.10 par value --
25,000,000 shares authorized;
7,531,207 shares actual outstanding;
8,631,207 shares as adjusted outstanding(3)....................... 753 863
Additional paid-in capital.......................................... 29,365 29,448
Accumulated deficit................................................. (15,762) (17,289)
-------- -----------
Total stockholders' equity................................ 14,357 13,023(4)
-------- -----------
Total capitalization...................................... $ 62,646 $ 76,012
======== =========
</TABLE>
- ---------------
(1) Availability under the New Credit Facility will be subject to a borrowing
base initially established at $10 million. See "Description of New Credit
Facility."
(2) Represents the principal face amount of Notes of $65 million less an
original issue discount of $352 and value ascribed to the Warrants of
$1,659.
(3) As adjusted shares outstanding reflects the exchange of warrants for shares
of Common Stock by the Series D Holders concurrently with the consummation
of the Unit Offering but excludes 5,348,219 shares of Common Stock issuable
upon conversion of preferred stock or exercise of outstanding options and
warrants.
(4) Includes a reduction in additional paid-in capital of $2,046 in connection
with the redemption of the Series D Preferred Stock, a write off of $1,527
of deferred financing costs in connection with the early extinguishment of
debt and an increase in additional paid-in capital of $2,239 related to
value ascribed to all of the warrants issued in connection with the Unit
Offering.
29
<PAGE> 34
PRO FORMA FINANCIAL DATA
The following unaudited pro forma financial data are derived from the
historical financial statements of HarCor Energy, Inc. set forth elsewhere
herein and are adjusted to reflect (i) the consummation of the Unit Offering and
the application of a portion of the net proceeds to repay all indebtedness
outstanding under the Prior Credit Facility and the Bridge Loan, to redeem the
Series D Preferred Stock and to fund the acquisition of the Carried Interest
Wells, (ii) the acquisition of the Bakersfield Properties and the results of
operations for the Bakersfield Properties, (iii) the exchange of certain
outstanding warrants for shares of common stock of the Company and (iv) the
write-off of deferred financing costs as a result of the early extinguishment of
debt and the recording of estimated transaction costs relating to the Unit
Offering.
The unaudited Pro Forma Condensed Consolidated Balance Sheet reflects such
adjustments as if such transactions had occurred at June 30, 1995 and the
unaudited Pro Forma Statements of Operations reflect such adjustments as if such
transactions had occurred on January 1, 1994 (except that the acquisition of the
Carried Interest Wells is assumed to have occurred during the fourth quarter of
1994, the period when the wells were drilled and completed). The unaudited pro
forma financial data should be read in conjunction with the notes thereto and
the consolidated financial statements of HarCor Energy, Inc. included elsewhere
herein.
The unaudited pro forma financial data do not purport to be indicative of
the financial position or results of operations which would actually have
occurred if the transactions described had occurred as presented in such
statements or which may be obtained in the future. In addition, future results
may vary significantly from the results reflected in such statements due to
normal crude oil and natural gas production declines, reductions in prices paid
for crude oil and natural gas, future acquisitions and other factors.
30
<PAGE> 35
HARCOR ENERGY, INC.
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1994
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
HISTORICAL ADJUSTMENTS
---------- ----------------------------------
HARCOR CARRIED
ENERGY, BAKERSFIELD INTERESTS THE PRO
INC. ACQUISITION(A) WELLS(B) OFFERING FORMA
---------- -------------- --------- -------- -------
<S> <C> <C> <C> <C> <C>
Revenues:
Oil and gas revenues.................. $10,982 $5,100 $287 $ -- $16,369
Gas plant revenues.................... 1,978 991 -- -- 2,969
Interest income....................... 16 -- -- -- 16
Other................................. 237 -- -- -- 237
------- ------ ---- ------- -------
Total revenues................... 13,213 6,091 287 -- 19,591
------- ------ ---- ------- -------
Costs and expenses:
Production costs...................... 3,610 1,297 7 -- 4,914
Gas plant costs....................... 1,708 1,591 -- -- 3,299
Dry hole, impairment and abandonment
costs.............................. 75 -- -- -- 75
Engineering and geological costs...... 254 75 -- -- 329
Depletion, depreciation and
amortization....................... 3,897 1,010 87 -- 4,994
General and administrative expenses... 2,014 96 -- -- 2,110
Interest expense...................... 2,269 1,058 -- 7,173(C) 10,500
Loss on partnership dissolution....... 203 -- -- -- 203
------- ------ ---- ------- -------
Total costs and expenses......... 14,030 5,127 94 7,173 26,424
------- ------ ---- ------- -------
Loss from continuing operations....... $ (817) $ 964 $193 $(7,173) $(6,833)
======= ====== ==== ======= =======
Loss applicable to common
shareholders....................... $(1,890) $(7,233)
======= =======
Loss from continuing operations per
share applicable to common
shareholders....................... $ (0.29) $ (0.85)(D)
======= =======
Primary shares outstanding............ 6,447 8,534 (D)
======= =======
EBITDA(E)............................. $ 5,552 $ 8,864
======= =======
</TABLE>
See accompanying notes to pro forma financial statements.
31
<PAGE> 36
HARCOR ENERGY, INC.
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1995
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
ADJUSTMENTS
-------------------
CARRIED
INTERESTS THE PRO
HISTORICAL WELLS(B) OFFERING FORMA
------- ------ ------- -------
<S> <C> <C> <C> <C>
Revenues:
Oil and gas revenues........................... $ 7,056 $1,281 $ -- $ 8,337
Gas plant revenues............................. 3,154 -- -- 3,154
Interest income................................ 21 -- -- 21
Other.......................................... 14 -- -- 14
------- ------ ------- -------
Total revenues......................... 10,245 1,281 -- 11,526
------- ------ ------- -------
Costs and expenses:
Production costs............................... 2,523 194 -- 2,717
Gas plant costs................................ 2,207 -- -- 2,207
Engineering and geological costs............... 186 -- -- 186
Depletion, depreciation and amortization....... 2,443 445 -- 2,888
General and administrative expenses............ 1,216 -- -- 1,216
Interest expense............................... 2,237 -- 3,081(C) 5,318
------- ------ ------- -------
Total costs and expenses............... 10,812 639 3,081 14,532
------- ------ ------- -------
Loss before extraordinary item................. $ (567) $ 642 $(3,081) $(3,006)
======= ====== ======= =======
Loss applicable to common shareholders......... $(1,403) $(3,201)
======= =======
Loss before extraordinary item per share
applicable to common shareholders.............. $ (0.19) $ (0.38)(D)
======= =======
Primary shares outstanding....................... 7,531 8,631(D)
======= =======
EBITDA(E)........................................ $ 4,113 $ 5,200
======= =======
</TABLE>
See accompanying notes to pro forma financial statements.
32
<PAGE> 37
HARCOR ENERGY, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
JUNE 30, 1995
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
PRO
HISTORICAL ADJUSTMENTS FORMA
---------- ----------- -------
<S> <C> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents............................... $ 1,254 $ 8,976 (K) $10,230
Accounts receivable..................................... 1,978 -- 1,978
Prepaids and other...................................... 298 -- 298
------- ------- -------
Total current assets............................... 3,530 8,976 12,506
Property and equipment, net............................... 59,726 2,337 (F) 62,063
Other assets.............................................. 3,512 2,053 (G) 5,565
------- ------- -------
Total assets....................................... $66,768 $13,366 $80,134
======= ======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Current portion of long-term bank debt.................. $ -- $ -- $ --
Bridge Loan............................................. -- -- --
Accounts payable and accrued liabilities................ 4,067 -- 4,067
------- ------- -------
Total current liabilities.......................... 4,067 -- 4,067
Long-term debt............................................ 39,340 (39,340)(H) --
Senior Notes.............................................. -- 62,989 (I) 62,989
Other liabilities......................................... 55 -- 55
Series D Preferred Stock.................................. 8,949 (8,949)(J) --
Stockholders' Equity:
Preferred stock......................................... 1 -- 1
Common stock............................................ 753 110 (D) 863
Additional paid-in capital.............................. 29,365 83 (J) 29,448
Accumulated deficit..................................... (15,762) (1,527)(G) (17,289)
------- ------- -------
Total stockholders' equity......................... 14,357 (1,334) 13,023
------- ------- -------
Total liabilities and stockholders' equity......... $66,768 $13,366 $80,134
======= ======= =======
</TABLE>
See accompanying notes to pro forma financial statements.
33
<PAGE> 38
HARCOR ENERGY, INC.
NOTES TO UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(A) The adjustment represents estimated revenues and expenses that would
have been incurred by the Company if the Bakersfield Properties had been
acquired on January 1, 1994 instead of June 30, 1994.
(B) The adjustment represents the acquisition of the Carried Interest Wells
during the fourth quarter of 1994, the period when the wells were drilled and
completed.
(C) The adjustment represents the change in interest expense associated
with (i) the inclusion of interest and discount amortization associated with the
Notes offered hereby of $9,955 and $4,977 for the year ended December 31, 1994
and the six months ended June 30, 1995, respectively, (ii) the elimination of
$3,074 and $1,928 in the year ended December 31, 1994 and the six months ended
June 30, 1995, respectively, resulting from the repayment of the Prior Credit
Facility and the Bridge Loan, (iii) the elimination of amortization of deferred
financing costs of $220 and $225 for the year ended December 31, 1994 and the
six months ended June 30, 1995, respectively, related to the Prior Credit
Facility and the Bridge Loan and (iv) the inclusion of $512 and $256 of
estimated amortization of deferred financing cost for the year ended December
31, 1994 and the six months ended June 30, 1995, respectively, related to the
Unit Offering.
(D) The pro forma earnings per share data reflect dividends on remaining
preferred stock which increase loss applicable to common shareholders. The
extraordinary write off of deferred financing costs and the charge to additional
paid-in capital noted below have not been reflected in the calculation of
earnings per share before extraordinary item. Outstanding stock options,
warrants and convertible preferred shares were not included in the calculation
as their effect was antidilutive. Primary shares outstanding reflects the impact
of a certain transaction whereby existing holders of warrants to purchase the
Company's common shares exchanged those warrants for common shares. The pro
forma increase in primary shares outstanding as a result of this transaction is
1,100,000. See Note 6 of Notes to Interim Consolidated Financial Statements.
(E) EBITDA represents income before provision for income tax and
extraordinary items and before depletion, depreciation, amortization, interest
expense, minority interests and other. EBITDA is presented because it is a
widely accepted financial indicator of a company's ability to service and/or
incur indebtedness. However, EBITDA should not be considered as an alternative
to net income as a measure of operating results or to cash flows as a measure of
liquidity.
(F) The adjustment represents the acquisition of the Carried Interest
Wells.
(G) The adjustment represents the increase in deferred financing costs
estimated at $3,580 associated with the issuance of the Units and the write-off
of $1,527 of deferred financing costs resulting from the early extinguishment of
the Prior Credit Facility.
(H) The adjustment represents (i) the repayment of the Prior Credit
Facility and (ii) the repayment of the Bridge Loan.
(I) The adjustment represents the issuance of the Series A Notes in the
principal face amount of $65 million less an original issue discount of $352 and
value ascribed to the Warrants of $1,659.
(J) The adjustment includes the redemption of $10,995 (face value) Series D
Preferred Stock. The difference between the recorded value of $8,949 at June 30,
1995 and the face value represents the discount which was being accreted to
additional paid-in capital over the life of the Series D Preferred Stock.
Accordingly, at redemption, this difference of $2,046 is recorded as a charge to
additional paid-in capital. The adjustment also includes the value ascribed to
all of the warrants issued in connection with the Unit Offering in the amount of
$2,239 as an increase to additional paid-in capital.
34
<PAGE> 39
(K) The pro forma net effect of these transactions on the Company's cash
and cash equivalents in the Pro Forma Balance Sheet are as follows:
<TABLE>
<S> <C>
Issuance of the Units............................................. $ 64,648
Estimated Transaction Costs....................................... (3,000)
Retirement of Prior Credit Facility............................... (34,340)
Retirement of Bridge Loan......................................... (5,000)
Redemption of Series D Preferred Stock............................ (10,995)
Purchase of Carried Interest Wells................................ (2,337)
--------
$ 8,976
========
</TABLE>
The Company intends to use the balance of the cash remaining from this offering
to finance its pro rata share of the development of the Bakersfield Properties
over the next six months. Projected results from this development are not
included in these pro forma financial statements as the success or outcome of
such development activities cannot be determined at this time. Further, no
investment income on cash balances has been assumed.
35
<PAGE> 40
SELECTED FINANCIAL DATA
The historical financial data presented below for the five years ended
December 31, 1994 are derived from the Company's audited financial statements.
Such audited financial statements were examined by Arthur Andersen LLP, with the
exception of the financial data with respect to HCO Energy, Ltd., the Company's
former Canadian affiliate, which were examined by Peat Marwick Thorne. The
historical data for the six month periods ended June 30, 1994 and 1995 are
derived from the unaudited financial statements of the Company. In the opinion
of management, such unaudited financial statements include all adjustments
(consisting of only normal recurring adjustments) necessary for a fair
presentation of the financial data for such periods. The information in this
table should be read in conjunction with "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and the Consolidated Financial
Statements and the notes thereto elsewhere herein.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
--------------------------------------------------- ------------------
1990 1991 1992 1993 1994 1994 1995
------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
STATEMENT OF OPERATIONS DATA:
Revenues:
Oil and gas revenues(1)......................... $ 4,905 $ 5,776 $ 6,162 $ 6,507 $10,982 $ 3,276 $ 7,056
Gas plant....................................... -- -- -- -- 1,978 -- 3,154
Interest income and other(2).................... 466 259 504 218 253 18 35
------- ------- ------- ------- ------- ------- -------
Total Revenues............................ 5,370 6,034 6,666 6,725 13,213 3,294 10,245
Costs and expenses:
Production costs................................ 1,712 2,670 2,675 2,249 3,610 1,031 2,523
Gas plant....................................... -- -- -- -- 1,708 -- 2,207
Dry hole, impairment and abandonment costs...... 403 1,287 402 41 75 10 4
Engineering and geological costs................ 363 770 536 188 254 121 182
Depletion, depreciation and amortization........ 1,189 2,222 2,142 2,641 3,897 1,324 2,443
General and administrative expenses............. 1,355 2,372 2,085 2,105 2,014 986 1,216
Interest expense(3)............................. 580 872 1,048 542 2,269 304 2,237
Other(4)........................................ 747 -- -- -- 203 203 --
------- ------- ------- ------- ------- ------- -------
Total costs and expenses.................. 6,349 10,193 8,889 7,766 14,030 3,979 10,812
------- ------- ------- ------- ------- ------- -------
Loss before minority interests.................... (979) (4,159) (2,223) (1,041) (817) (685) (567)
Loss attributable to minority interests........... (781) (2,698) (808) -- -- -- --
Provision for income taxes........................ -- -- -- -- -- -- --
Loss attributable to early extinguishment of
debt............................................ -- -- -- -- (122) (122) --
------- ------- ------- ------- ------- ------- -------
Net loss.......................................... (198) (1,461) (1,414) (1,041) (939) (807) (567)
Dividends on preferred stock...................... (24) (40) (32) (246) (795) (140) (671)
Accretion on redeemable preferred stock........... -- -- -- -- (156) -- (165)
------- ------- ------- ------- ------- ------- -------
Net loss applicable to common stock............... $ (222) $(1,501) $(1,446) $(1,287) $(1,890) $ (947) $(1,403)
======= ======= ======= ======= ======= ======= =======
OTHER DATA:
EBITDA(5)......................................... $ 1,537 $(1,065) $ 968 $ 2,142 $ 5,552 $ 1,146 $ 4,113
Capital expenditures.............................. 4,185 2,593 4,237 4,283 45,608(6) 43,241(6) 515
Deficiency of earnings to fixed charges(7)........ -- 1,461 1,414 1,041 694
Book value per common share (end of period)....... 1.11 0.60 0.86 1.31 2.13 2.28 1.91
BALANCE SHEET DATA (END OF PERIOD):
Cash and cash equivalents....................... $ 977 $ 389 $ 929 $ 2,162 $ 899 $ 2,415 $ 1,254
Total assets.................................... 16,317 15,586 12,580 17,937 68,573 65,600 66,768
Total debt...................................... 7,168 10,427 7,100 8,541 39,400 39,247 39,340
Series D Preferred Stock........................ -- -- -- -- 8,402 7,879 8,949
Stockholders' equity............................ 3,301 1,798 4,645 7,536 15,353 16,224 14,357
</TABLE>
- ---------------
(1) Includes $1,399, $2,388 and $2,895 in 1990, 1991 and 1992, respectively,
from the Company's Canadian operations. In December 1992, the Company
deconsolidated HCO Energy, Ltd. ("HCO"), its former Canadian affiliate, and
in January 1993, the Company sold all of its remaining shares of HCO common
stock.
(2) Includes $412, $222 and $459 in 1990, 1991 and 1992, respectively, from HCO.
(3) Interest expense includes $29, $42, $64 and $220 in 1991, 1992, 1993 and
1994, respectively, and $225 in the six months ended June 30, 1995 related
to amortization of deferred financing costs.
(4) Includes expenses, incurred in 1990, of $208 and $539, respectively,
attributable to the Company's equity in the net loss of its Canadian venture
and the write-off of the Company's investment in HarCor Capital Markets,
Inc., and a loss in 1994 of $203 attributable to the dissolution of the
Partnership.
(5) EBITDA represents income (loss) before provision for income tax and
extraordinary items and before depletion, depreciation, amortization,
interest expense, minority interests and other. EBITDA is presented because
it is a widely accepted financial indicator of a company's ability to
service and/or incur indebtedness. However, EBITDA should not be considered
as an alternative to net income as a measure of operating results or to cash
flows as a measure of liquidity.
(6) Includes $42,000 of cash acquisition costs incurred in connection with the
acquisition of the Bakersfield Properties.
(7) Earnings have been inadequate to cover fixed charges since 1991.
36
<PAGE> 41
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
In order to protect against the effects of declines in oil and gas prices,
the Company generally enters into either fixed price sales contracts or hedging
contracts covering significant portions of the Company's estimated future
production. This strategy has allowed the Company to grow more rapidly by
providing more predictable cash flows on which to finance its acquisitions and
development drilling. As of June 30, 1995, the Company had approximately 75% of
its oil production and approximately 55% of its gas production committed to such
fixed price sales and hedging contracts based on first quarter 1995 production.
The Company has a contract to hedge 8,000 Bbls of oil per month from
February 1994 to August 1996 that provides for a "ceiling" price of $18.75 per
barrel and a "floor" price of $15.80 per barrel. Thus, pursuant to such hedge
contract, if the index price is lower than $15.80, then the Company is paid the
difference between the index price and $15.80 for each barrel hedged and if the
index price is higher than $18.75, then the Company pays the difference between
the index price and $18.75 for each barrel hedged. The Company has entered into
another contract to hedge (i) 300 barrels of oil per day from May 1995 to April
1996 and (ii) 250 barrels of oil per day from May 1996 to April 1997. This hedge
provides for a fixed price of $18.51 per barrel. Changes in the value of the
agreements are recognized as oil revenues or a reduction of oil revenues in
periods in which the hedged production occurs.
In connection with the acquisition of certain oil and gas properties in
South Texas (the "South Texas Properties") in October 1992 the Company entered
into a three-year gas sale contract with Cabot Oil and Gas Corporation (formerly
Washington Energy Marketing, Inc., "Cabot") under which the Company receives
approximately $1.80 per MMBtu at the wellhead for all of its gas sold up to an
agreed level of production in each field of the South Texas Properties (up to an
aggregate of approximately 3,031 MMBtu per day net to the Company). The
three-year gas sale contract was amended in September 1993 to provide a floor
price of $2.05 per MMBtu for a portion of such contracted volumes from January
1995 through December 1995. Beginning in 1995, Cabot has not paid the $1.80 per
MMBtu price for volumes of gas delivered pursuant to the gas sales contract, but
rather has paid the spot market price for such gas because Cabot claims that, as
a result of the dissolution of STLP, the gas sales contract was cancelled
effective December 31, 1994. In March 1995, the Company filed a lawsuit against
Cabot to enforce the terms of the gas sales contract because the Company
believes that such contract, as amended, was assigned to the Company as part of
the dissolution of STLP and, therefore, is still in effect. Although the Company
believes that it is entitled to recover the amounts owed by Cabot and the court
should enforce the terms of the gas sales contract, the Company cannot predict
the outcome of such lawsuit.
The Company entered into a hedging contract covering approximately 75% of
its projected proved developed producing oil production from the Bakersfield
Properties until June 30, 1997 at a reference price of $17.25 per Bbl. Pursuant
to such hedge contract, the Company pays half of the difference between $17.25
and the index price (the NYMEX price for light, sweet crude oil) if the index
price is higher than $17.25 and the Company receives the difference between
$17.25 and the index price if the index price is lower than $17.25, as
determined on a monthly basis. Additionally, the Company entered into a gas
sales contract covering the gas production from the Bakersfield Properties
pursuant to which the Company will receive (i) $1.985 per MMBtu for the delivery
of 3,750 MMBtu of gas per day from October 1, 1994 to September 30, 1995, (ii)
$2.0297 per MMBtu for the delivery of 3,000 MMBtu of gas per day from October 1,
1995 to September 30, 1996 and (iii) $2.0753 per MMBtu for the delivery of 2,500
MMBtu of gas per day from October 1, 1996 to September 30, 1997. The Company
entered into a firm gas sales contract for 3,750 MMBtu per day delivered into
the SoCal Pipeline System. The term of the contract is one year, commencing
December 1, 1994 and ending November 30, 1995. The composite average price
received by the Company for the gas sold is $1.81 per MMBtu. The Company also
entered into a firm sales contract commencing December 1, 1995 and ending
November 30, 1997 for the sale of 3,000 MMBtu per day at an effective price of
$1.70 per MMBtu.
37
<PAGE> 42
In June 1994, the Company acquired 75% of Bakersfield's interest in the
Lost Hills and North Antelope Hills oil and gas fields and a 23 MMcf per day gas
processing plant in the San Joaquin Basin of California.
In March 1993, the Company exchanged 30,000 shares of its Series B 8%
Convertible Preferred Stock for certain gross overriding royalty and net profits
interests in certain oil and gas properties located in Oklahoma, Texas,
Louisiana and New Mexico (the "Royalty Interests").
In October 1992, the Company formed a partnership ("STLP") with Washington
Energy Exploration, Inc. and an unrelated third party for the purpose of
acquiring the South Texas Properties). At such time, the Company owned a 25.25%
interest in STLP. In May 1993, the Company purchased an additional 12.625%
interest in STLP with the proceeds of the sale of 10,000 shares of its Series C
8% Convertible Preferred Stock. The acquisition of the South Texas Properties
was financed by STLP through a production note. Effective March 1, 1994, the
STLP partners agreed to dissolve STLP and distribute all of the assets and
liabilities of STLP to the partners in proportion to their respective interests.
Upon dissolution, each partner paid its proportionate share of all amounts under
the production note.
In April 1989, the Company acquired 36% of the outstanding common stock of
HCO Energy Ltd. ("HCO"), a Canadian oil and gas company. Thus, from April 1989
to June 1990, the Company accounted for its investment in HCO using the equity
method. In June 1990, the Company increased its ownership of HCO to over 50% and
thus, from June 1990 through December 1992, the accounts of HCO were
consolidated with those of HarCor. In December 1992, HarCor's interest in HCO
was decreased to 21% and HCO was deconsolidated. In January 1993 the shares of
HCO common stock held by the Company were sold. Therefore, the Company's results
of operations for the year ended December 31, 1993 do not reflect any of the
results of operations of HCO. All of HCO's operations have been in Canada and
all of the Company's operations (excluding HCO) have been in the U.S. See Notes
1 and 2 of the Notes to Consolidated Financial Statements. All financial data
with respect to HCO is expressed in U.S. dollars.
The Company uses the successful efforts method of accounting for its oil
and gas properties. See Footnote 1 of Notes to Consolidated Financial
Statements. In February 1992 the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards (FAS) No. 109 which requires an
asset and liability approach to determining deferred income taxes. The Company
adopted FAS 109 cumulatively effective January 1, 1993. The new standard had no
impact on the Company's financial position or results of operations for 1993.
See Footnotes 1 and 8 of Notes to Consolidated Financial Statements.
CONCURRENT TRANSACTIONS
During the fourth quarter of 1994, the Company entered into an agreement
with Bakersfield Energy, whereby the existing non-consent provision of the
operating agreement was amended relative to the drilling of the Carried Interest
Wells in the fourth quarter of 1994 to provide that the operator will retain
100% of the net revenue from the Carried Interest Wells until the operator has
recovered a payout of 110% of the drilling costs and then the Company will
revert to its prior 75% working interest position in the Carried Interest Wells.
The Company used approximately $2.3 million of the net proceeds of the Unit
Offering to accelerate the payout of the drilling costs, the effect of which
allowed the Company to revert to its prior 75% working interest position in the
Carried Interest Wells.
Concurrently, with the consummation of the Unit Offering, the Company and
the holders of the Series D Preferred Stock (the "Series D Holders") exchanged
the Series D Holders' warrants to purchase shares of Common Stock for 1,100,000
shares of unregistered Common Stock of the Company. This exchange was subject to
certain conditions including (i) the Company's concurrent redemption of the
Series D Preferred Stock at par; (ii) certain appreciation rights to the Series
D Holders over a two-year period following the exchange in the event of a change
of control of the Company and its Board of Directors and (iii) certain
registration rights for the Series D Holders.
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RESULTS OF OPERATIONS
COMPARISON OF THREE MONTHS ENDED JUNE 30, 1995 TO THREE MONTHS ENDED JUNE
30, 1994
Revenues. The Company's total revenues increased $3,112,000 (189%) from
$1,649,000 in second quarter 1994 to $4,761,000 in the current period.
The Company's oil and gas revenues increased $1,733,000 (106%) from
$1,640,000 in the second quarter of 1994 to $3,373,000 in the current period.
Oil revenues increased $1,002,000 (139%) from $722,000 in second quarter 1994 to
$1,724,000 in the current period due to higher oil production. The Company's oil
production increased 56,200 barrels (123%) from 45,800 barrels in the second
quarter of 1994 to 102,000 barrels in the current period. The increased
production was primarily a result of the acquisition of the Bakersfield
Properties, which contributed 59,000 barrels during the second quarter of 1995.
Oil production from the Company's other properties remained relatively unchanged
in the aggregate between the periods. The average price received for oil was
$16.91 per barrel during second quarter 1995 compared to $15.77 per barrel for
the same period in 1994.
The Company's gas revenues increased $731,000 (80%) from $917,000 in the
second quarter of 1994 to $1,648,000 in the current period also due to increased
production. Gas production increased 661,000 Mcf (151%) from 438,000 Mcf in
second quarter 1994 to 1,099,000 Mcf in second quarter 1995. The Bakersfield
Properties contributed an increase of 636,000 Mcf during the current period. Gas
production from the Company's other properties increased 25,000 Mcf in the
aggregate during the current period. Average prices received for gas were $1.50
per Mcf in second quarter 1995 as compared to $2.09 per Mcf in the second
quarter of 1994.
During the second quarter of 1995, the Company realized revenues of
$1,369,000 from its share of the operations of the natural gas processing plant
acquired as part of the Bakersfield Properties. These revenues consisted of
$518,000 in the resale of natural gas purchased from third parties, $820,000 in
the sale of processed natural gas liquids, including the sale of natural gas
liquids extracted from the natural gas purchased from third parties and $31,000
in gas processing fees.
Costs and Expenses. Total costs and expenses increased $3,068,000 (167%)
from $1,840,000 in second quarter 1994 to $4,908,000 in the current period.
The Company's production costs increased $775,000 (159%) from $488,000 in
the second quarter of 1994 to $1,263,000 in the current period. This was
primarily due to the acquisition of the Bakersfield Properties, which accounted
for $686,000 of production costs incurred during the second quarter of 1995.
Production costs on the Company's other properties increased $89,000 in the
aggregate in the current quarter.
During the second quarter of 1995, the Company incurred operating costs of
$797,000 associated with the natural gas processing plant acquired as part of
the Bakersfield Properties. These costs included $457,000 from the purchase of
natural gas for processing and resale and $340,000 of direct operating expenses.
The Company incurred engineering and geological expenses of $93,000 and
$37,000 during the quarters ended June 30, 1995 and 1994, respectively. The
increase in the current period was due to the larger number of oil and gas
properties owned by the Company and activities related to their evaluation and
management.
The Company's depletion, depreciation and amortization ("DD&A") expense
increased $405,000 (59%) from $691,000 in second quarter 1994 to $1,096,000 in
the second quarter of 1995 as a result of increases in depreciable oil and gas
assets due to substantial acquisition and development costs incurred in the
Bakersfield Property acquisition. The DD&A rate per BOE for oil and gas reserves
was $3.88 per barrel of oil equivalent ("BOE") in the current period as compared
to $5.43 per BOE during second quarter 1994. Further affecting the increase in
overall DD&A expense was depreciation expense relating to the natural gas
processing plant acquired as part of the Bakersfield Properties in 1994.
The Company's general and administrative expenses increased $101,000 (22%)
from $449,000 in the second quarter of 1994 to $550,000 in the current period
due to the Company's recent expansion and increased activities.
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<PAGE> 44
The Company's interest expense increased $944,000 from $164,000 in second
quarter 1994 to $1,108,000 in the current quarter primarily as a result of the
bank debt used to finance the acquisition of the Bakersfield Properties in June
1994. The Company's bank debt increased from $8,847,000 at June 30, 1994 to
$39,400,000 during the current period, resulting in a significantly higher
average debt balance during the current quarter. Also increasing interest
expense in the current period was $108,000 in amortization of deferred financing
costs resulting from the various financings effected in the Bakersfield Property
acquisition.
Total dividends on preferred stock were $336,000 in the second quarter of
1995, as compared to $70,000 in the second quarter of 1994. The increase in
dividends was a result of the issuance of additional preferred stock as part of
the financing for the acquisition of the Bakersfield Properties. Dividends in
second quarter 1995 consisted of $65,000 in cash, $241,000 in Series D Preferred
Stock and $30,000 in common stock of the Company. The Company also incurred a
non-cash charge of $84,000 attributable to accretion on its Series D Redeemable
Preferred Stock in the current period.
Net Loss. The Company's net operating loss for second quarter 1995 was
$147,000, while net loss attributable to common stockholders was $567,000 ($.08
per share) after preferred dividends and accretion on preferred stock. In second
quarter 1994, the Company had a net loss of $191,000 and net loss to common
shareholders of $261,000 ($.05 per share) after preferred dividends.
COMPARISON OF SIX MONTHS ENDED JUNE 30, 1995 TO SIX MONTHS ENDED JUNE 30,
1994
Revenues. The Company's total revenues increased $6,951,000 (211%) from
$3,294,000 in the first half of 1994 to $10,245,000 in the first half of 1995.
The Company's oil and gas revenues increased $3,780,000 (115%) from
$3,276,000 for the first half of 1994 to $7,056,000 for the first half of 1995.
Oil revenues increased $2,134,000 (153%), due to an increase in oil production
volumes of 120,600 barrels (130%), from 92,900 barrels in the first half of 1994
to 213,500 barrels in the current period. The increased production was a result
of the acquisition of the Bakersfield Properties, which produced 130,800 barrels
of oil during the first half of 1995. Oil production from the Company's other
properties decreased 10,200 barrels (11%) in the aggregate due to normal
production declines. The average price received for oil was $14.97 per barrel
during the first six months of 1994 compared to $16.51 per barrel in the current
period, representing an increase of $1.54 per barrel (10%).
The Company's gas revenues increased $1,646,000 (87%) from $1,885,000 in
the first half of 1994 to $3,531,000 in the current period due to increased
production. Gas production increased 1,260,000 Mcf (126%) from 997,000 Mcf in
the first half of 1994 to 2,257,000 Mcf in the first half of 1995. The
Bakersfield Properties contributed 1,364,000 Mcf of the production increase
during the current period. Gas production from the Company's other properties
decreased 104,000 Mcf in the aggregate during the current period due to normal
production declines. The average price received for gas was $1.56 per Mcf during
the current period as compared to $1.89 per Mcf during the first six months of
1994, representing a decrease of $.33 per Mcf (17%).
During the first half of 1995, the Company realized revenues of $3,154,000
from its share of the operations of the natural gas processing plant acquired as
part of the Bakersfield Properties. These revenues consisted of $1,657,000 in
the resale of natural gas purchased from third parties, $1,442,000 in the sale
of processed natural gas liquids, including the sale of natural gas liquids
extracted from the natural gas purchased from third parties, and $55,000 in gas
processing fees.
Costs and Expenses. Total costs and expenses increased $6,833,000 (172%)
from $3,979,000 in 1994 to $10,812,000 in 1995.
The Company's production costs increased $1,492,000 (145%) from $1,031,000
in the first half of 1994 to $2,523,000 in the first half of 1995. This was
primarily due to the acquisition of the Bakersfield Properties, which accounted
for $1,317,000 of production costs incurred in the first half of 1995.
Production costs on the Company's other properties increased $175,000 in the
aggregate during the current period.
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<PAGE> 45
During the first half of 1995, the Company incurred costs of $2,207,000
resulting from the operations of a natural gas processing plant acquired with
the acquisition of the Bakersfield Properties. These costs included $1,414,000
for the purchase of natural gas for processing and resale and $793,000 of direct
operating expenses.
The Company incurred incidental abandonment costs on older non-productive
leases of $4,000 in the current period as compared to $10,000 during the first
half of 1994. Engineering and geological expenses increased $61,000 (50%) from
$121,000 in the first half of 1994 to $182,000 in the first half of 1995 due to
an increase in the number of oil and gas properties owned by the Company and
activities related to their evaluation and management.
The Company's DD&A expense increased $1,119,000 (84%) from $1,324,000 in
1994 to $2,443,000 in 1995 as a result of the substantial increase in
acquisition and development costs related to the Bakersfield Property
acquisition. The DD&A rate for oil and gas reserves was $3.84 per BOE in the
current period as compared to $5.11 during the first half of 1994. Further
affecting the increase in overall DD&A expense was $155,000 in depreciation
expense relating to the natural gas processing plant acquired as part of the
Bakersfield Properties.
The Company's general and administrative expenses increased $230,000 (23%)
from $986,000 for the first half of 1994 to $1,216,000 in the first half of
1995. Increases in G&A were a result of the additional personnel and outside
professional services resulting from the Company's increased acquisition and
financing activities.
The Company's interest expense increased $1,934,000 from $304,000 in the
first half of 1994 to $2,238,000 in the first half of 1995 as a result of the
increased bank debt resulting from the financing of the Bakersfield Properties
in June 1994. Also increasing interest expense in the current period was
$225,000 in amortization of deferred financing costs resulting from the various
financings effected in the Bakersfield Property acquisition. In addition,
interest rates were higher during the current period as compared to the first
half of 1994.
The Company recorded a charge of $203,000 in the first half of 1994 from a
write-off of a portion of its interests in the South Texas Properties, which
portion was conveyed to a third party pursuant to the terms of the dissolution
of STLP. Also in connection with the dissolution of STLP, the Company incurred
an extraordinary non-operating charge of $122,000 resulting from the early
extinguishment of debt in the refinancing of the South Texas Properties.
Dividends on preferred stock were $140,000 in the first six months of 1994
as compared to $671,000 in the first six months of 1995. The increase in
dividends was a result of the issuance of additional preferred stock as part of
the financing for the acquisition of the Bakersfield Properties. Dividends in
the first half of 1995 consisted of $135,000 in cash, $476,000 in Series D
Preferred Stock and $60,000 in common stock of the Company. The Company also
incurred a non-cash charge of $165,000 attributable to accretion on its Series D
Preferred Stock in the current period.
Net Loss. The Company's net operating loss for the first half of 1995 was
$568,000, while net loss attributable to common stockholders was $1,403,000
($.19 per share) after preferred dividends and accretion on preferred stock. In
the first half of 1994, the Company had a net loss of $807,000 after an
extraordinary item of $122,000 and net loss to common shareholders of $947,000
($.16 per share) after preferred dividends.
COMPARISON OF YEAR ENDED DECEMBER 31, 1994 TO YEAR ENDED DECEMBER 31, 1993
Acquisition. Included in results of operations for 1994 are six months of
operations from the Bakersfield Properties, which were acquired on June 30,
1994.
Revenues. The Company's total revenues increased $6,488,000 (96%) from
$6,725,000 in 1993 to $13,213,000 in 1994.
The Company's oil and gas revenues increased $4,475,000 (69%) from
$6,507,000 in 1993 to $10,982,000 in 1994. Oil revenues increased $1,975,000
(67%) from $2,950,000 in 1993 to $4,925,000 in 1994 due to higher oil
production. The Company's oil production increased approximately 133,000 barrels
(74%) from
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<PAGE> 46
179,000 barrels in 1993 to 312,000 barrels in 1994. The increased production was
primarily a result of the acquisition of the Bakersfield Properties, which
contributed 131,400 barrels during the last six months of 1994. The Company's
Permian Basin Properties experienced an increase of 5,400 barrels in 1994 due to
the Company's acquisition of additional oil and gas interests in that area in
late 1994. Additionally, oil production from the South Texas Properties
increased by 2,100 barrels due to the additional 12.625% interest in those
properties acquired by the Company in May 1993 and the drilling of four
development wells in late 1993 and early 1994. Oil production from the Company's
Gulf Coast and other properties declined approximately 6,200 barrels in the
aggregate due to normal production declines. The average price received for oil
was $15.79 per barrel during 1994 compared to $16.49 per barrel in 1993.
The Company's gas revenues increased $2,527,000 (72%) from $3,518,000 in
1993 to $6,045,000 in 1994 also due to increased production. Gas production
increased 1,341,000 Mcf (68%) from 1,985,000 Mcf in 1993 to 3,325,000 Mcf in
1994. The acquisition of the Bakersfield Properties contributed 1,315,000 Mcf of
the increase while production from the South Texas Properties increased 174,000
Mcf due to the additional 12.625% interest acquired by the Company and the
drilling of four development wells. Gas production from the Royalty Interests
decreased 76,000 Mcf in 1994 as compared to 1993 as a result of mechanical
problems with a gas purchaser's compression facilities which serve a significant
gas lease. These facility problems were corrected in the fourth quarter of 1994.
Gas production from the Company's other properties decreased 72,000 Mcf in the
aggregate in 1994 due to normal production declines. Average prices received for
gas were $1.82 per Mcf in 1994 as compared to $1.77 per Mcf in 1993. Excluding
natural gas liquids attributable to the Bakersfield gas plant, the Company also
realized $12,000 in natural gas liquids sales in 1994 as compared to $39,000 in
1993.
During 1994, the Company realized revenues of $1,978,000 from its share of
the operations of the natural gas processing plant acquired as part of the
Bakersfield Properties. These revenues consisted of $718,000 in the resale of
natural gas purchased from third parties, $1,199,000 in the sale of processed
natural gas liquids, including the sale of natural gas liquids extracted from
the natural gas purchased from third parties and $61,000 in gas processing fees.
The Company realized other income of $237,000 in 1994 resulting primarily
from a gain on the sale of securities. During 1993, the Company had other income
of $197,000 resulting primarily from the sale of its interests in several minor
oil and gas properties.
Costs and Expenses. Total costs and expenses increased $6,264,000 (81%)
from $7,766,000 in 1993 to $14,030,000 in 1994.
The Company's production costs increased $1,361,000 (61%) from $2,249,000
in 1993 to $3,610,000 in 1994. This was primarily due to the acquisition of the
Bakersfield Properties, which accounted for $1,373,000 in production costs
during the last six months of 1994. Production costs on the South Texas
Properties increased $143,000 in the current year due to developmental drilling
activities while production costs from the Company's other oil and gas
properties decreased $155,000 in the aggregate as a result of lower workover
costs.
During 1994, the Company incurred operating costs of $1,708,000 associated
with the natural gas processing plant acquired as part of the Bakersfield
Properties. These costs included $876,000 from the purchase of natural gas for
processing and resale and $832,000 of directing operating expenses.
The Company incurred incidental abandonment costs on older non-productive
leases of $75,000 in 1994 as compared to $41,000 in 1993. Engineering and
geological expenses increased $66,000 (35%) from $188,000 in 1993 to $254,000 in
1994 due to the Company's increased activities.
The Company's DD&A expense increased $1,256,000 (48%) from $2,641,000 in
1993 to $3,897,000 in 1994 as a result of increases in depreciable oil and gas
assets due to acquisitions and development costs. The DD&A rate per BOE for oil
and gas reserves decreased from $5.13 per BOE in 1993 to $4.26 per BOE in 1994
due to lower acquisition costs per BOE for oil and gas reserves acquired during
1994 and positive reserve revisions during 1994. Further affecting the increase
in overall DD&A expense was depreciation expense relating to the natural gas
processing plant acquired as part of the Bakersfield Properties in 1994.
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The Company's general and administrative expenses decreased slightly from
$2,105,000 in 1993 to $2,014,000 in 1994 (4%). The Company experienced $142,000
in non-recurring costs resulting from its relocation from California to Texas
during 1993.
The Company's interest expense increased $1,727,000 from $542,000 in 1993
to $2,269,000 in 1994 primarily as a result of the bank debt used to finance the
acquisition of the Bakersfield Properties in June 1994. The Company's bank debt
increased from $8,541,000 at December 31, 1993 to $39,400,000 at December 31,
1994, resulting in a significantly higher average debt balance during the
current year.
The Company recorded a charge of $203,000 in 1994 from a write-off of a
portion of its interests in the South Texas Properties, which portion was
conveyed to a third party pursuant to the terms of the dissolution of STLP. Also
in connection with the dissolution of STLP, the Company incurred an
extraordinary non-operating charge of $122,000 in 1994 resulting from the early
extinguishment of debt in the refinancing of the South Texas Properties.
Total dividends on preferred stock were $795,000 in 1994, as compared to
$246,000 in 1993. The increase in dividends was a result of the issuance of
additional preferred stock as part of the financing for the acquisition of the
Bakersfield Properties. Dividends in 1994 consisted of $280,000 in cash,
$455,000 in Series D Preferred Stock and detachable warrants and $60,000 in
common stock of the Company. All 1993 dividends were paid in cash. The Company
also incurred a non-cash charge of $156,000 attributable to accretion of its
Series D Redeemable Preferred Stock in 1994.
Net Loss. The Company's net loss before the extraordinary item in 1994 was
$816,000, and $939,000 after the extraordinary item. Net loss attributable to
common stockholders was $1,890,000 ($.29 per share) after preferred dividends,
accretion on preferred stock and the extraordinary item. In 1993, the Company
had a net loss of $1,041,000 ($1,287,000 or a loss of $.23 per share
attributable to common shareholders after preferred dividends).
COMPARISON OF YEAR ENDED DECEMBER 31, 1993 TO YEAR ENDED DECEMBER 31, 1992
Revenues. Total revenues as reported increased $59,000 (1%), from
$6,666,000 in 1992 to $6,725,000 in 1993. Included in 1992 revenues, however,
was $3,354,000 attributable to HCO's activities. Excluding 1992 revenues
attributable to HCO, HarCor's total revenues increased $3,413,000 (103%) in the
current year as compared to 1992. All of the following revenues and volumes
stated for comparative purposes for 1992 exclude HCO's activities.
Oil and gas revenues increased $3,240,000 (99%) from $3,267,000 in 1992 to
$6,507,000 in 1993. Oil revenues increased $600,000 (25%) from $2,351,000 in
1992 to $2,951,000 in 1993 due primarily to additional production resulting from
the South Texas Properties acquired in late 1992 and of the Royalty Interests
acquired in March 1993. Oil production pertaining to HarCor's properties
increased 51,300 barrels (40%) in the aggregate in 1993 as compared to 1992,
including 26,500 Bbls and 26,000 Bbls of oil produced in 1993 from the South
Texas Properties and the Royalty Interests, respectively. The average price
received for oil decreased from $18.37 per Bbl in 1992 to $16.49 per Bbl in
1993, representing a decrease of $1.88 per Bbl (10%). The decrease in average
oil prices in 1993 was experienced by the oil and gas industry as a whole, as
prices for West Texas Intermediate crude oil fell from a high of $21.50 per Bbl
in June 1993 to approximately $13.00 per Bbl at December 31, 1993.
Gas revenues increased $2,602,000 (284%) in the current year from $916,000
in 1992 to $3,518,000 in 1993 due to additional production resulting from the
acquisition of the South Texas Properties and the Royalty Interests. The South
Texas Properties and the Royalty Interests contributed 1,273,000 Mcf and 365,000
Mcf of gas in 1993, respectively, as compared to 179,000 Mcf of gas attributable
to the South Texas Properties in 1992 (fourth quarter only). HarCor's gas
production from other properties decreased 32,000 Mcf in the aggregate,
resulting in a net increase in production of 1,427,000 Mcf (256%) in 1993 as
compared to 1992. The average price received for gas increased from $1.64 per
Mcf during 1992 to $1.77 per Mcf in 1993, representing an increase of $.13 per
Mcf (8%). The increase in average gas prices was attributable to both an
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increase in the spot market price and the fact that the Company had hedged a
large portion of its production from the South Texas Properties under contracts
with prices higher than those received overall during 1992.
Interest income decreased $6,000 (24%) from $27,000 in 1992 to $21,000 in
1993 due to lower interest rates and lower average cash balances maintained
during the current year. Other income increased $179,000 in 1993 due primarily
to gains on sales of several oil and gas properties.
Costs and Expenses. Total costs and expenses as reported decreased
$1,123,000 (13%) from $8,889,000 in 1992 to $7,766,000 in 1993. Included in
1992, however, were costs and expenses of $4,238,000 attributable to HCO's
activities. Excluding 1992 costs and expenses attributable to HCO, HarCor's
total costs and expenses increased $3,115,000 (67%) in 1993. All of the
following costs and expenses stated for comparative purposes for 1992 exclude
HCO's activities.
Production costs increased $945,000 (72%) from $1,304,000 in 1992 to
$2,249,000 in 1993. This increase was primarily due to increased production
volumes resulting from the acquisition of the South Texas Properties and the
Royalty Interests, which accounted for $811,000 and $226,000 during 1993,
respectively, as compared to $124,000 from the South Texas Properties in 1992
(fourth quarter only). Production costs and expenses pertaining to HarCor's
other properties increased $33,000 in the aggregate during 1993.
Engineering and geological expenses increased slightly to $188,000 in 1993
as compared to $181,000 in 1992.
Depletion, depreciation and amortization expense ("DD&A") increased
$1,697,000 (180%) from $944,000 in 1992 to $2,641,000 in 1993. This significant
increase was partially a result of a net increase of $8,032,000 to the Company's
property and equipment during 1993 which was primarily due to the acquisition of
the South Texas Properties and the Royalty Interests, and the subsequent
development drilling activities on the South Texas Properties. The Company's
overall DD&A rate also increased from $4.00 per barrel-of-oil-equivalent ("BOE")
in 1992 to $5.13 per BOE in 1993 due in part to the acquisition of gas reserves
on the South Texas Properties having shorter lives than HarCor's other gas
reserves. Further affecting the increase in DD&A were downward revisions to the
Company's existing year-end oil reserves as a result of lower prices at December
31, 1993 as compared to 1992.
General and administrative expenses increased $535,000 (34%) from
$1,570,000 in 1992 to $2,105,000 in 1993. The increase in such expenses was a
result of the addition of personnel, the Company's acquisition and financing
activities and approximately $142,000 of non-recurring costs associated with the
transition of the Company's corporate headquarters from Los Angeles, California
to Houston, Texas.
Interest expense increased $77,000 (17%) from $465,000 in 1992 to $542,000
in 1993. The production note relating to the South Texas Properties accounted
for an increase of $111,000, while interest expense related to the Company's
long-term bank debt decreased $33,000 due to average lower interest rates during
1993 as compared to 1992.
Dividends on preferred stock increased $214,000 (669%) from $32,000 in 1992
to $246,000 in 1993. The increase was due to the issuance of 30,000 shares of
Series B 8% Convertible Preferred Stock and 10,000 shares of Series C 8%
Convertible Preferred Stock at $100 per share during 1993 for aggregate proceeds
of $4,000,000.
Net Loss. The Company's net loss for 1993 was $1,041,000 ($1,287,000 or
$.23 per share attributable to common stockholders after preferred stock
dividends). In 1992 the Company had a net loss of $1,414,000 ($1,446,000 or $.41
per share after preferred stock dividends). The results of 1992 included the
Company's share of the results of HCO's operations which accounted for $76,000
of the loss for that year.
LIQUIDITY AND CAPITAL RESOURCES
Capital Expenditures. The Company intends to spend approximately $53.0
million for capital expenditures to develop the proved reserves of the
Bakersfield Properties, of which $10.9 million will be spent in the second half
of 1995, $12.4 million in 1996 and $29.7 million thereafter. An additional $3.0
million will be spent over the next several years for the development of the
Company's other properties. The Company
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intends to fund such amounts out of a portion of the net proceeds from the Unit
Offering, operating cash flows and borrowings under the New Credit Facility.
During the last six months of 1994, the Company drilled and completed 14 wells
(10.5 net) on the Bakersfield Properties at a cost of approximately $4 million
(net to the Company). The drilling of these wells resulted in a 45% increase in
the Company's average daily oil production from 546 barrels per day during June
1994, the month immediately prior to the acquisition date, to a rate of
approximately 792 barrels per day during January 1995. Similarly, during the
same time period, the Company's natural gas production increased 22% from 7.2
MMcf per day to approximately 8.8 MMcf per day. The Company expects that an
additional 38 gross (28.5 net) development wells will be drilled on such
properties in 1995, at an estimated cost of $14.6 million and ($10.9 million net
to the Company). During the first quarter of 1995, the Company curtailed its
capital expenditures and did not drill or complete any new wells. As a result,
the Company's rate of production declined in accordance with engineering
projections from 3,682 barrels per day in the fourth quarter of 1994 to 3,168
barrels per day in the second quarter of 1995. The
curtailment occurred because the Company was capital constrained and, upon
consummation of the Unit Offering, the Company resumed its planned drilling
activities for the balance of 1995.
The Company currently anticipates that total additional drilling necessary
to develop the Bakersfield Properties after 1995 will result in approximately
123 gross (92.3 net) new wells. The projected total development costs for the
proved reserves assigned to the Bakersfield Properties after 1995 are estimated
at approximately $56 million ($42 million net to the Company) based on current
drilling costs. No assurances can be given, however, that any of such wells will
be drilled, or that if such wells are drilled, they will be either successful or
completed in accordance with the Company's development schedule.
The Company intends to continue participating in development drilling on
the South Texas Properties as those opportunities arise and as resources are
available. The Company is also involved in two small waterflood projects on its
Permian Basin properties and plans to participate in a third waterflood project
on such properties. It is anticipated that capital expenditures required for
these developmental activities will be funded from operating cash flows.
The Company replaced the $34,400,000 Prior Credit Facility, the $5,000,000
Bridge Loan and the $8,900,000 Series D Preferred Stock through the sale of the
Units. The Company expects that the net proceeds from the Unit Offering,
together with its available cash and expected cash flows from operating
activities will be sufficient to meet its financial obligations and fund its
developmental drilling activities for the foreseeable future, provided, that (i)
there are no further significant decreases in oil and gas prices beyond those
experienced at the end of 1994, (ii) there are no significant declines in oil
and gas production from existing properties other than declines in production
currently anticipated based on engineering estimates of the decline curves
associated with such properties, (iii) drilling costs for development wells with
respect to the Bakersfield Properties do not increase significantly from the
drilling costs recently experienced by Bakersfield Energy in such area with
respect to similar wells, and (iv) Bakersfield Energy continues its development
program with respect to the Bakersfield Properties on the schedule currently
contemplated.
Operating Activities. Net cash provided by operating activities was
$1,359,000 in the first six months of 1995 as compared to $538,000 of cash used
in operations during the first six months of 1994.
During the first six months of 1995, net cash flow was $2,286,000 after
adjusting net loss from operations of $568,000 for the following non-cash items:
DD&A ($2,243,000), engineering and geological ($186,000) and amortization of
deferred charges ($225,000). In the first six months of 1994, cash flow from
operations after non-cash adjustments was $971,000. The improvement in the
current period is primarily a result of substantially increased oil and gas
revenues resulting from the Bakersfield Property acquisition in June 1994.
Revenues from these properties were further enhanced subsequent to acquisition
as a result of developmental drilling in the latter half of 1994. Cash flow from
operating activities for the first six months of 1995 was also impacted by
decreases in accounts receivable and prepaids of $1,900,000 and decreases in
current liabilities of $2,827,000.
Investing Activities. Net cash used in investing activities was $701,000
during the first six months of 1995 as compared to a net of $43,370,000 used in
the first six months of 1994. In the current period, the Company spent $515,000
on lease and facilities development and $186,000 on geological and engineering
45
<PAGE> 50
activities. Included in 1994 investing activities was approximately $42,000,000
in cash used in the acquisition of the Bakersfield Properties.
Financing Activities. The Company expended $303,000 on financing
activities during the first six months of 1995 as compared to $43,085,000
realized from financing activities during the first six months of 1994.
During the second quarter of 1995, the Company repaid $60,000 on its credit
facility, paid $135,000 in cash dividends on preferred stock and $108,000 on
miscellaneous financing activities. The Company elected to pay the dividends on
the Series D Preferred Stock in shares of Series D Preferred Stock with
detachable warrants to purchase common stock, and paid dividends on the Series E
Preferred Stock in common stock during 1994. The aggregate amount of these
non-cash dividends was $536,000. 1994 financing activities reflected proceeds
received in the financing of the Bakersfield Property acquisition.
The Company entered into the New Credit Facility with ING Capital in July
1995. Availability under the New Credit Facility will be limited to a "borrowing
base" amount. The borrowing base will be determined from time to time by the
lender, in its sole discretion, and may be established at an amount up to $15
million. Initially, the borrowing base was set at $10 million and ING Capital
will have no obligation to increase the borrowing base above this amount.
Amounts advanced under the New Credit Facility bear interest at an adjusted
LIBOR rate plus 2.25%. The New Credit Facility will convert to a term loan on
January 31, 1996, with a set amortization schedule and will have a final
maturity of December 31, 1998.
Results of Hedging Activities. The Company's hedging activities for the
six-month periods ended June 30, 1995 and 1994 have not had any material effect
on the Company's liquidity or results of operations. See Note 5 of Notes to
Consolidated Financial Statements.
Working Capital. The Company had received waivers from ING Capital in
connection with its current ratio and fixed charge coverage ratio covenants at
March 31, 1995 under the Prior Credit Facility. The Company used a portion of
the net proceeds of the Unit Offering to repay its Prior Credit Facility and the
Bridge Loan in July 1995.
EFFECTS OF INFLATION AND CHANGES IN PRICE
The Company's results of operations and cash flows are affected by changing
oil and gas prices. If the price of oil and gas increases, there could be a
corresponding increase in the cost to the Company for drilling and related
services, as well as an increase in revenues. Inflation has had a minimal effect
on the Company.
46
<PAGE> 51
BUSINESS AND PROPERTIES
THE COMPANY
HarCor Energy, Inc. is an independent energy company engaged in the
acquisition, exploration, development and production of crude oil and natural
gas within onshore areas of the United States. The Company's principal reserves
and producing properties are primarily located in the San Joaquin (California)
Basin, South Texas, the Permian Basin, and the Louisiana and Alabama onshore
Gulf Coast. Based on the estimates of Ryder Scott and Huddleston as of January
1, 1995, the Company had total proved reserves of 25.1 MMBOE consisting of 13.5
MMBbls of crude oil and NGLs and 69.8 Bcf of natural gas. The Company's Pre-tax
SEC 10 Value at January 1, 1995 was $86.7 million, approximately 85% of which
was attributable to net proved reserves acquired in June 1994 and located in the
Lost Hills field in the San Joaquin Basin. The Company also owns a 75% interest
in a 23 MMcf per day gas processing and fractionation plant in the San Joaquin
Basin, which processes the natural gas produced in the San Joaquin Basin by the
Company and certain third parties.
BUSINESS STRATEGY
The Company's primary business objective is to acquire and develop, in
cooperation with experienced regional industry operators, oil and gas properties
with significant development potential while using hedging strategies to
minimize the negative effects of oil and gas price volatility on profitability.
The Company intends to continue fulfilling its business objective through the
use of the following operating strategies:
Strategic Alliances with Local Operators. The Company's principal strategy
is to align itself financially and operationally with strategic partners that
have extensive, regionally-focused exploitation and technological expertise.
While the strategic partner serves as operator, HarCor seeks to maintain
supervisory control by retaining decision-making authority over the nature of
capital projects and the magnitude and timing of capital investments. In
addition, these alliances are typically structured so that the strategic
partners have a significant portion of their capital at risk and are motivated
by financial risks and incentives similar to those of the Company. Management
believes that these alliances provide the Company with several important
benefits. First, the Company leverages off the demonstrated core competencies in
specific basins of each of the strategic partners to develop optimal strategies
for managing and exploiting acquired reserves. Second, the Company is able to
maintain low overhead expenses because its corporate level business activity can
be conducted with a small group of senior management and operating personnel.
Finally, alliances with strategic partners enable the Company to identify and
capitalize quickly on acquisition opportunities in established oil and gas
producing regions throughout the United States.
Managed Development. Approximately 16.9 MMBOE, or 67%, of the Company's
total proved reserves as of January 1, 1995, are classified as proved
undeveloped by Ryder Scott. Management believes that the risk inherent in
developing reserves is substantially reduced due to the location of virtually
all of the Company's undeveloped reserves within the known producing region of
the Lost Hills field in the San Joaquin Basin. To exploit these proved
undeveloped reserves, the Company has identified 161 new wells which it intends
to drill during the next eight years to fully develop the proved reserves on the
properties, of which 38 are expected to be drilled in 1995 and 48 in 1996
utilizing a portion of the proceeds of this offering. In addition, the Company
has targeted 38 locations for future development of probable and possible
reserves located on the San Joaquin properties.
Capitalize on Proven Technologies. Utilizing primary production
techniques, Ryder Scott estimates, as of January 1, 1995, that the Bakersfield
Properties should produce proven reserves net to the Company of approximately
6.3 MMBbls of crude oil, which the Company estimates represents an average
recovery rate of 7.4% of total crude oil originally in place. Upon completion of
primary development, management intends to increase recovery rates by
implementing a secondary recovery waterflood project, which has been
successfully utilized by other oil and gas companies operating in the San
Joaquin Basin. Ryder Scott estimates that the Company's Ellis Lease (one of four
leases to which the Company controls in the San Joaquin Basin) alone will yield
an additional 2.6 MMBbls of crude oil of proved undeveloped secondary recovery
reserves utilizing the waterflood recovery method, resulting in an increase in
recovery of estimated crude oil initially in place on the Ellis Lease of an
additional 4%. To the extent that the waterflood application results in
incremental
47
<PAGE> 52
recovery rates greater than 4% over primary recovery methods, the Company may
achieve a significant increase in production and reserves on the Bakersfield
Properties. The Company's current Pre-tax SEC 10 Value related to the
Bakersfield Properties of $73.6 million, therefore, would likely increase as a
result of this incremental recovery. In addition, several major oil companies
operating in the San Joaquin Basin are currently employing, on both a pilot and
fully implemented project basis, other additional enhanced recovery techniques,
such as thermal stimulation, in order to further increase recovery rates and
profitability. Management will continue to evaluate the implementation of
various other enhanced recovery applications once the operating and economic
benefits have been clearly established.
Minimize Exposure to Oil and Gas Price Volatility. Management utilizes a
conservative hedging strategy to protect against the effects of volatility in
crude oil and natural gas commodity prices. Typically, upon consummation of an
acquisition, management will enter into hedging contracts which cover
approximately two thirds of the then existing production of the acquired
property. Over time, as production increases, the Company will continue to
utilize hedging techniques to ensure that a substantial portion of its
production is appropriately hedged. Management believes that this hedging
strategy is advantageous because it allows the Company to generate a predictable
cash flow stream from the hedged portion of its production and therefore provide
a reliable source of funds to finance future development and acquisition
activities. As of June 30, 1995, the Company had fixed approximately 77% of
projected crude oil production and 71% of projected natural gas production from
its currently producing properties over the next two years.
Selective Acquisitions. The Company intends to pursue selective
acquisitions of attractively priced, underexploited oil and gas properties
primarily within the onshore oil and gas producing regions of the United States.
The Company will consider acquisitions both with existing strategic partners as
well as those involving newly established alliances with experienced regional
operators. In addition, management intends to continue to be proactive in
developing acquisition opportunities rather than pursuing opportunities in the
auction market. Management believes that this proactive strategy has
historically resulted in lower acquisition prices paid for its oil and gas
properties. On average, the Company's reserve replacement cost was $2.54 per BOE
for its existing reserves, as compared to an average of approximately $4.60 per
BOE for 30 of the largest energy companies selected by Arthur Andersen LLP in an
industry publication, during the three-year period from 1992 to 1994.
PRIMARY OPERATING AREAS
San Joaquin Basin (California). On June 30, 1994, the Company acquired 75%
of Bakersfield Energy Resources, Inc. and its affiliates' ("Bakersfield Energy")
interests in the Lost Hills oil and gas field and a 23 MMcf per day gas
processing plant in the San Joaquin Basin of California, for a total purchase
price of approximately $46 million. The properties produce a light
(approximately 40() gravity), low sulfur crude oil that has a higher value
product yield than most other crude oils produced in California and consequently
sells at a premium in that market. The associated natural gas produced with the
crude oil has a high Btu content (approximately 1,240 Btu) which yields in
excess of 2 gallons of NGLs per Mcf of natural gas when processed in the
Company's gas plant. At the time of the acquisition, the Company believed that
significant development potential existed at the Bakersfield Properties. On June
30, 1994 the Bakersfield Properties had 47 net productive wells with average
daily production for June 1994 of approximately 546 Bbls of oil and 7,195 Mcf of
gas per day. As of January 1, 1994, Ryder Scott estimated that the net proved
reserves attributable to the interests acquired by the Company in the
Bakersfield Properties were 6.6 MMBbls of crude oil and 46.8 Bcf of natural gas,
or a total of 14.5 MMBOE and a Pre-tax SEC 10 Value of $49.7 million. Since the
acquisition, the Company, in conjunction with Bakersfield Energy, the local
operator and 25% owner, has drilled 27 gross wells on the Bakersfield Properties
and expects to drill an additional 161 gross wells over the next eight years. As
a result of drilling completed during the second half of 1994, the Company's
average daily production from the Bakersfield Properties increased by 30% to 792
Bbls of oil and 8,842 Mcf of gas per day during January 1995 as compared to June
1994. Furthermore, the Company's net proved reserves from the Bakersfield
Properties have increased by 49% to 21.6 MMBOE at January 1, 1995, producing a
Pre-tax SEC 10 Value of $73.6 million as estimated by Ryder Scott. Management
estimates that the Company's share of the future development costs to fully
develop the proved reserves of the Bakersfield Properties will be $53.0 million
over the next eight years.
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<PAGE> 53
The Bakersfield Properties produce a high gravity (approximately 40() API),
low sulfur crude oil which commands a premium price relative to other crude oils
produced in California due to its higher value product yield. Currently,
production from the Bakersfield Properties is aggregated at a central storage
facility owned and operated by the Company and is sold to a local refiner which
transports the crude oil to its facility by truck. The Company is in the process
of connecting the Bakersfield Properties to Chevron Corporation's crude oil
gathering system (the "Chevron System"). The Chevron System comprises an
extensive pipeline network that provides access to the various crude oil markets
throughout California. By connecting to such system, the Company believes it can
realize a higher price for its crude oil by providing access to a wider range of
customers and eliminating for future buyers the cost of transporting the crude
oil by truck.
Natural gas produced from the Bakersfield Properties is also aggregated at
the Company's central storage facility and transported via Company pipeline to
the Bakersfield Plant approximately ten miles away. The Bakersfield Plant, which
was acquired as part of the Bakersfield Properties, is a modern, refrigeration
liquid extraction facility with inlet capacity of 23 MMcf of natural gas per day
and NGLs fractionation capacity of 100,000 gallons per day. Currently, the
Bakersfield Plant processes all of the natural gas produced from the Bakersfield
Properties as well as natural gas produced by third parties. Management believe
that the Bakersfield Plant has the capacity to process the incremental natural
gas volumes produced at the Bakersfield Properties once the primary development
and waterflood strategies have been implemented.
By processing natural gas produced at the Bakersfield Properties through
its own facilities, the Company is able to achieve a higher price than by
selling the natural gas at the wellhead. The Bakersfield Plant enables the
Company to separate NGLs from the wet natural gas stream, which are then
fractionated into more valuable components: propane, normal butane, isobutane
and natural gasoline. By selling the individual components of the fractionated
NGL stream and the residue gas, the Company has generally been able to realize
significant value over that of the unprocessed wet natural gas stream. The
residue gas is then shipped to purchasers via the multiple pipeline connections
at the plant. These multiple connections enable the Company to sell its natural
gas to the market that will provide the best price.
The Bakersfield Properties are currently being operated by Bakersfield
Energy, a company which originally acquired an interest in these properties in
1990. The four members of senior management of Bakersfield Energy have a
combined 80 years experience in drilling and operating in the San Joaquin Basin.
As part of the terms of the acquisition of the Bakersfield Properties,
Bakersfield Energy maintains a 25% interest in the Bakersfield Properties, is a
stockholder of the Company and has a representative on the Board of Directors of
the Company. In addition, the Company entered into a joint acquisition agreement
with Bakersfield Energy which gives each party the right to participate equally
in any acquisition of oil and gas interests located within the state of
California by the other party.
Permian Basin (West Texas/New Mexico). Since 1989, the Company has worked
with Penroc Oil and Gas Corporation to jointly identify and acquire interests in
oil and gas properties located in the Permian Basin with total acquisition costs
net to the Company of $3.4 million. Subsequent remedial work, development
drilling activity and secondary recovery procedures have resulted in current
average daily production of 297 Bbls of crude oil and 379 Mcf of natural gas
based on production in the three months ended June 30, 1995 production. Ryder
Scott's estimate of net proved reserves at January 1, 1995 was 1.6 MMBOE.
South Texas. The Company has worked with Washington Energy Exploration,
Inc. (which was recently acquired by Cabot Oil and Gas Corporation ("Cabot")) to
jointly identify and acquire interests in oil and gas properties located in
South Texas for a total acquisition cost net to the Company of $5.4 million.
Current average daily production in South Texas is 34 Bbls of crude oil and
3,682 Mcf of natural gas based on second quarter 1995 production, and Ryder
Scott's estimate of net proved reserves was 1.4 MMBOE at January 1, 1995.
Other. In May 1993, the Company acquired certain gross overriding royalty
and net profits interests in certain oil and gas properties located in Oklahoma,
Texas, Louisiana and New Mexico from institutional participants in a fund
managed by Trust Company of the West ("TCW"). Pursuant to this transaction, the
Company acquired 528 MBOE of net proved reserves for $3.1 million.
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<PAGE> 54
PRODUCTION BY GEOGRAPHIC REGION
The following table shows, for the years indicated, the net production,
measured in barrels ("Bbls") of oil, thousands of cubic feet ("Mcf") of gas, and
barrels of oil equivalents ("BOE"), attributable to the Company's oil and gas
interests by geographic region:
<TABLE>
<CAPTION>
1992 1993
------------------------------ -------------------------------
BBLS MCF BOE BBLS MCF BOE
------- -------- ------- ------- --------- -------
<S> <C> <C> <C> <C> <C> <C>
San Joaquin Basin(1)................................... 0 0 0 0 0 0
Permian Basin.......................................... 74,282 216,285 110,330 86,006 204,907 120,157
South Texas ........................................... 3,648 178,869 33,460 26,481 1,272,867 238,626
Other.................................................. 50,014 162,692 77,129 66,748 507,029 151,253
------- -------- ------- ------- --------- -------
U.S. Total....................................... 127,944 557,846 220,919 179,235 1,984,803 510,036
Canada................................................. 103,724 1,194,902 302,874 0 0 0
Total............................................ 231,668 1,752,748 523,793 179,235 1,984,803 510,036
======= ======== ======= ======= ========= =======
</TABLE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED
1994 JUNE 30, 1995
------------------------------ -------------------------------
BBLS MCF BOE BBLS MCF BOE
------- -------- ------- ------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
San Joaquin Basin(1)................................... 131,368 1,315,321 350,588 130,834 1,364,074 358,180
Permian Basin.......................................... 91,404 161,187 118,269 51,174 69,561 62,767
South Texas ........................................... 28,630 1,446,404 269,697 5,887 647,267 113,765
Other.................................................. 60,429 402,729 127,551 25,606 175,607 54,874
------- -------- ------- ------- --------- -------
Total............................................ 311,831 3,325,641 866,105 213,501 2,256,509 589,586
======= ======== ======= ======= ========= =======
</TABLE>
- ---------------
(1) Lease only -- excludes plant NGLs.
The following table summarizes the Company's producing and shut-in wells
and producing acreage as of December 31, 1994:
<TABLE>
<CAPTION>
GROSS NET PRODUCING UNDEVELOPED
WELLS(1) WELLS(2) ACREAGE ACREAGE
- ----------- --------------- ---------------- ----------------
OIL GAS OIL GAS GROSS NET GROSS NET
- ---- --- ----- ----- ------ ----- ------ -----
<S> <C> <C> <C> <C> <C> <C> <C>
303 76 131.6 18.17 30,071 7,272 17,344 6,355
</TABLE>
- ---------------
(1) The number of gross wells and acreage shown equals the total number of wells
or acres in which a working interest is owned.
(2) The number of net wells or acres shown equals the sum of the fractional
working interests owned in gross wells or acres, expressed as whole numbers
or fractions thereof.
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<PAGE> 55
PRODUCTION, REVENUES AND LIFTING COSTS
The following table shows, for the years indicated, the average net daily
production, measured in Bbls of oil and Mcf of gas, attributable to the
Company's oil and gas interests, the annual revenues derived by the Company from
the sale of such production, the weighted average selling price per unit and the
weighted average cost to the Company per unit produced:
<TABLE>
<CAPTION>
1992
----------------------------
U.S. CANADA TOTAL 1993 1994
------ ------ ------ ------ -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Average Net Daily Production
(amounts in thousands):
Crude oil and condensate (Bbls)............ 356 288 644 505 867
Natural gas (Mcf).......................... 1,550 3,319 4,869 5,514 9,239
Plant NGLS................................. -- -- -- -- 261
Revenues:
Crude oil and condensate................... $2,351 $1,702 $4,053 $2,951 $ 4,925
Natural gas................................ 916 1,193 2,109 3,518 6,045
Gas plant.................................. -- -- -- -- 1,978
Other...................................... -- -- -- 38 12
------- ------ ------ ------ ------
Total revenues............................... $3,267 $2,895 $6,162 $6,507 $12,960
======= ====== ====== ====== ======
Costs:
Production costs........................ $1,304 $1,371 $2,675 $2,249 $ 3,610
Gas plant operating expenses............ -- -- -- -- 1,708
------- ------ ------ ------ ------
Total costs.................................. $1,304 $1,371 $2,675 $2,249 $ 5,318
======= ====== ====== ====== ======
Weighted average selling price:
Crude oil and condensate (per Bbl)......... $18.37 $16.37 $17.47 $16.49 $ 15.79
Natural gas (per Mcf)...................... 1.64 1.00 1.20 1.77 1.82
Production costs per BOE..................... 5.90 4.52 5.10 4.41 4.17
</TABLE>
Calculation of average selling price per barrel of crude oil and condensate
excludes certain revenues attributable to hydrocarbon liquids and product sales
in 1993 and 1994. All average price data consider the effects of the Company's
fixed-price sales and hedging contracts. See Note 10 of Notes to Consolidated
Financial Statements.
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<PAGE> 56
DRILLING ACTIVITIES
The following table shows the gross and net number of exploratory and
development wells drilled in the years indicated and the Company's interests
therein:
<TABLE>
<CAPTION>
1992
----------------------------------------------
U.S. CANADA TOTAL 1993 1994
------------ ------------- ------------- ------------- --------------
GROSS NET GROSS NET GROSS NET GROSS NET GROSS NET
----- --- ----- ---- ----- ---- ----- ---- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Exploratory:
Oil.................... -- -- -- -- -- -- -- -- -- --
Gas.................... -- -- -- -- -- -- -- -- -- --
Dry.................... -- -- 1 0.27 1 0.27 -- -- -- --
Development:
Oil.................... -- -- 1 0.27 1 0.27 10 0.74 14 10.50
Gas.................... -- -- -- -- -- -- 4 1.37 2 .60
Dry.................... -- -- 2 0.54 2 0.54 -- -- -- --
Total:
Producing.............. -- -- 1 0.27 2 0.27 14 2.11 16 11.10
Dry.................... -- -- 3 0.81 3 0.81 -- -- -- --
-- -- -- ---- -- ---- -- ---- -- -----
-- -- 4 1.08 4 1.08 14 2.11 16 11.10
== == == ==== == ==== == ==== == =====
</TABLE>
RESERVES
The Company's net proved reserves, net proved developed reserves and the
standardized measure of discounted future net cash flows from such proved
reserve quantities are shown in Note 18 of Notes to Consolidated Financial
Statements. The majority of the Company's oil and gas interests is held through
mineral leases which are kept open by current production and will continue to
remain open so long as there is production of oil and gas in commercial
quantities from such interests.
PRINCIPAL CUSTOMERS
Cabot accounted for 21%, 36% and 7% of the Company's oil and gas revenues
in 1994, 1993 and 1992, respectively. In the same years, respectively, Koch Oil
Company accounted for 4%, 9% and 14% of the Company's oil and gas revenues. In
1994, Kern Oil and Refining accounted for 17% of the Company's revenues.
In March 1995, the Company filed a lawsuit against Cabot to enforce the
terms of a gas sales contract because the Company believes that such contract,
as amended, was assigned to the Company as part of the dissolution of STLP and,
therefore, is still in effect. Although the Company believes that it is entitled
to recover the amounts owed by Cabot and the court should enforce the terms of
the gas sales contract, the Company cannot predict the outcome of such lawsuit.
The Company considers its relationships with the other principal customer
purchasers to be satisfactory. The Company believes that the loss of any present
customer would not have a material adverse effect on the Company's consolidated
business.
SALES, MARKETS AND MARKET CONDITIONS
With the exception of the gas produced from the Bakersfield Properties, all
of HarCor's production is generally sold at the wellhead or from on-site storage
facilities to oil and gas purchasing companies in the areas where it is
produced. Crude oil and condensate are typically sold at prices which are based
upon posted field prices. The natural gas produced from the Bakersfield
Properties is processed at the gas processing plant in which the Company has a
75% interest. The NGLs which are extracted in such process are sold in the spot
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<PAGE> 57
market. Including the natural gas remaining after extraction of the NGLs,
approximately 46% of HarCor's 1994 natural gas production was subject to
fixed-price contracts. The remainder of the Company's natural gas was sold at
spot market prices. The term "spot market" as used herein refers to contracts
with a term of six months or less or contracts which call for a redetermination
of sales prices every six months or earlier.
Price fluctuations in the oil market have a significant impact on the
Company's business because all of the Company's oil production is sold at prices
based upon posted field prices which vary monthly. In order to minimize the
price volatility to which the Company is subject, the Company entered into
hedging contracts with third parties covering significant portions of its oil
production in 1994 and 1995. Additionally, price fluctuations in the gas market
also have a significant impact on the Company's business because approximately
54% of the Company's 1994 natural gas production was sold at spot market prices
and the Company currently anticipates that approximately 40% of HarCor's
estimated natural gas production for 1995 will be sold at spot market prices.
The remainder of the Company's gas production is subject to certain fixed-price
contracts. For further information concerning the Company's fixed-price sales
and hedging contracts, see Note 10 of Notes to Consolidated Financial
Statements.
The Company's business is typically seasonal in nature. The demand for the
Company's oil and gas production generally increases during the winter months.
Gas prices in particular have been sensitive to weather patterns in recent
years. Weather conditions at certain times of the year can also affect the
operations of the Company's oil and gas properties and its ability to produce
hydrocarbons in commercially marketable quantities.
COMPETITION
The acquisition, exploration and development of oil and gas properties is a
highly competitive business. Many companies and individuals are engaged in the
business of acquiring interests in and developing onshore oil and gas properties
in the United States. The industry is not dominated by any single competitor or
a small number of competitors. Many entities with which the Company competes
have significantly greater financial resources, staff and experience. The
Company competes with major and independent oil and gas companies for the
acquisition of desirable oil and gas properties, as well as for the equipment
and labor required to operate and develop such properties. Many of these
competitors have financial and other resources substantially in excess of those
available to the Company. Such competitive disadvantages could adversely affect
the Company's ability to acquire desirable prospects or develop existing
prospects.
REGULATION
General. The Company's business is affected by governmental laws and
regulations, including price control, energy, environmental, conservation, tax
and other laws and regulations relating to the petroleum industry. For example,
state and federal agencies have issued rules and regulations that require
permits for the drilling of wells, regulate the spacing of wells, prevent the
waste of natural gas and crude oil reserves through proration, and regulate
environmental and safety matters. Changes in any of these laws and regulations
could have a material adverse effect on the Company's business. In view of the
many uncertainties with respect to current laws and regulations, including their
applicability to the Company, the Company cannot predict the overall effect of
such laws and regulations on future operations.
The Company believes that its operations comply in all material respects
with all applicable laws and regulations and that the existence of such laws and
regulations have no more restrictive effect on the Company's method of
operations than on other similar companies in the industry.
The following discussion contains summaries of certain laws and regulations
and is qualified in its entirety by reference thereto.
Regulation of the Sale and Transportation of Oil and Natural Gas. Various
aspects of the Company's oil and natural gas operations are regulated by
administrative agencies under statutory provisions of the states where such
operations are conducted and by certain agencies of the federal government for
operations on federal leases. The Federal Energy Regulatory Commission (the
"FERC") regulates the transportation and
53
<PAGE> 58
sale for resale of natural gas in interstate commerce pursuant to the Natural
Gas Act of 1938 (the "NGA") and the Natural Gas Policy Act of 1978 (the "NGPA").
In the past, the federal government has regulated the prices at which oil and
gas could be sold. Currently, sales by producers of natural gas, and all sales
of crude oil, condensate and natural gas liquids can be made at uncontrolled
market prices, but Congress could reenact price controls at any time.
Deregulation of wellhead sales in the natural gas industry began with the
enactment of the NGPA in 1978. In 1989, Congress enacted the Natural Gas
Wellhead Decontrol Act which removed all NGA and NGPA price and nonprice
controls affecting wellhead sales of natural gas effective January 1, 1993.
Commencing in April 1992, the FERC issued Order Nos. 636, 636-A, and 636-B
("Order No. 636"), which require interstate pipelines to provide transportation
separate, or "unbundled," from the pipelines' sales of gas. Also, Order No. 636
requires pipelines to provide open-access transportation on a basis that is
equal for all gas shippers. Although Order No. 636 does not directly regulate
the Company's activities, the FERC has stated that it intends for Order No. 636
to foster increased competition within all phases of the natural gas industry.
It is unclear what impact, if any, increased competition within the natural gas
industry under Order No. 636 will have on the Company's activities. Although,
Order No. 636, assuming it is upheld in its entirety, could provide the Company
with additional market access and more fairly applied transportation service
rates, Order No. 636 could also subject the Company to more restrictive pipeline
imbalance tolerances and greater penalties for violation of those tolerances.
The FERC has issued final orders of virtually all Order No. 636 pipeline
restructuring proceedings. Appeals of Order No. 636, as well as orders in the
individual pipeline restructuring proceedings, are currently pending and the
Company cannot predict the ultimate outcome of court review. This review may
result in the reversal, in whole or in part, of Order No. 636.
In December 1992, the FERC issued Order No. 547, governing the issuance of
blanket marketer sales certificates to all natural gas sellers other than
interstate pipelines. Order No. 547 applies to non-first sales that remain
subject to the FERC's NGA jurisdiction. The FERC intends Order No. 547, in
tandem with Order No. 636, to foster a competitive market for natural gas by
giving natural gas purchasers access to multiple supply sources at market-driven
prices. Order No. 547 may increase competition in markets in which the Company's
natural gas is sold.
Recently, the FERC issued a policy statement on how interstate natural gas
pipelines can recover the costs of new pipeline facilities. While this policy
statement affects the Company only indirectly, in its present form, the new
policy should enhance competition in natural gas markets and facilitate
construction of gas supply laterals. However, requests for rehearing of this
policy statement are currently pending. The Company cannot predict what action
the FERC will take on these requests.
The FERC has also recently clarified that it does not have jurisdiction
over natural gas gathering facilities and services and that such facilities and
services are properly regulated by state authorities. As a result, natural gas
gathering may receive greater regulatory scrutiny by state agencies. The
Company's gathering operations could be adversely affected should they be
subject in the future to state regulation of rates and services, although the
Company does not believe that it would be affected by such regulation any
differently than other natural gas producers or gatherers. In addition, the FERC
has approved several transfers by interstate pipelines of gathering facilities
to unregulated gathering companies, including pipeline affiliates. This could
allow such companies to compete more effectively with independent gatherers,
such as the Company.
The Company's natural gas gathering operations are generally subject to
safety and operational regulations relating to the design, installation,
testing, construction, operation, replacement and management of facilities.
Pipeline safety issues have recently become the subject of increasing focus in
various political and administrative arenas at both the state and federal
levels. For example, federal legislation addressing pipeline safety issues has
recently been introduced before Congress. Among other things, the legislation
includes a requirement that states adopt "one-call" notification systems.
Additional pending legislation would, among other things, increase the frequency
with which certain pipelines must be inspected, as well as increase potential
civil and criminal penalties for violations of pipeline safety requirements. The
Company believes its operations, to the extent they may be subject to current
gas pipeline safety requirements, comply in all material respects with such
requirements. The Company cannot predict what effect, if any, the adoption of
this or other additional pipeline safety legislation might have on its
operations, but the natural gas industry could
54
<PAGE> 59
be required to incur additional capital expenditures and increased costs
depending upon future legislative and regulatory changes.
Sales of crude oil, condensate and gas liquids by the Company are not
regulated and are made at market prices. The price the Company receives from the
sale of these products is affected by the cost of transporting the products to
market. Effective as of January 1, 1995, the FERC implemented regulations
establishing an indexing system for transportation rates for oil pipelines,
which would generally index such rates to inflation, subject to certain
conditions and limitations. These regulations could increase the cost of
transporting crude oil, liquids and condensates by pipeline. These regulations
are subject to pending petitions for judicial review. The Company is not able to
predict with certainty what effect, if any, these regulations will have on it,
but other factors being equal, the regulations may tend to increase
transportation costs or reduce wellhead prices for such conditions.
Additional proposals and proceedings that might affect the oil and gas
industry are pending before Congress, the FERC and the courts. The Company
cannot predict when or whether any such proposals may become effective. In the
past, the natural gas industry historically has been very heavily regulated.
There is no assurance that the current regulatory approach pursued by the FERC
will continue indefinitely into the future. Notwithstanding the foregoing, it is
not anticipated that compliance with existing federal, state and local laws,
rules and regulations will have a material or significantly adverse effect upon
the capital expenditures, earnings or competitive position of the Company.
Taxation. The operations of the Company, as is the case in the petroleum
industry generally, are significantly affected by federal tax laws, including
the Tax Reform Act of 1986. Certain transactions which were entered into in
connection with the Company's 1987 recapitalization have, under the Tax Reform
Act of 1986, significantly limited the Company's ability to utilize its net
operating losses arising prior to the recapitalization. In addition, certain
1992 equity transactions resulted in additional restrictions on the utilization
of net operating losses arising since 1987. For further information on the
limitations of the Company's net operating loss carryforwards, see Note 11 of
Notes to Consolidated Financial Statements contained herein.
In addition to the foregoing, federal, as well as state tax laws have many
provisions applicable to corporations in general which could affect the
potential tax liability of the Company.
Operating Hazards and Environmental Matters. The oil and gas business
involves a variety of operating risks, including the risk of fire, explosions,
blow-outs, pipe failure, casing collapse, abnormally pressured formations and
environmental hazards such as oil spills, gas leaks, ruptures and discharges of
toxic gases, the occurrence of any of which could result in substantial losses
to the Company due to injury or loss of life, severe damage to or destruction of
property, natural resources and equipment, pollution or other environmental
damage, clean-up responsibilities, regulatory investigation and penalties and
suspension of operations. Such hazards may hinder or delay drilling, development
and on-line production operations.
Extensive federal, state and local laws and regulations govern oil and
natural gas operations regulating the discharge of materials into the
environment or otherwise relating to the protection of the environment. These
laws and regulations may require the acquisition of a permit before drilling
commences, restrict or prohibit the types, quantities and concentration of
substances that can be released into the environment or wastes that can be
disposed of in connection with drilling and production activities, prohibit
drilling activities on certain lands lying within wetlands or other protected
areas and impose substantial liabilities for pollution resulting from drilling
and production operations. Moreover, state and federal environmental laws and
regulations may become more stringent.
Texas regulates the disposal of wastes containing naturally occurring
radioactive material which are commonly generated during oil and gas production.
The Company is evaluating whether any wastes associated with its activities may
be subject to these regulations. While the cost of the evaluation is not
expected to be material, the Company will not be in a position to estimate any
additional compliance costs until the evaluation is completed. Typically, wastes
containing naturally occurring radioactive material can be managed on-site or
disposed of at facilities licensed to receive such waste at costs that are not
expected to be material.
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<PAGE> 60
Numerous governmental departments issue rules and regulations to implement
and enforce such laws which are often difficult and costly to comply with and
which carry substantial penalties for failure to comply. Some laws, rules and
regulations relating to protection of the environment may, in certain
circumstances, impose "strict liability" for environmental contamination,
rendering a person liable for environmental damages and response costs without
regard to negligence or fault on the part of such person. Other laws, rules and
regulations may restrict the rate of oil and natural gas production below the
rate that would otherwise exist. The regulatory burden on the oil and natural
gas industry increases its cost of doing business and consequently affects its
profitability. As a result, these laws, rules and regulations affect the
operations and costs of the Company. Compliance with environmental requirements
generally could have a material adverse effect upon the capital expenditures,
earnings or competitive position of the Company. For instance, legislation has
been proposed in Congress from time to time that would modify the federal
Resource Conservation and Recovery Act of 1976, as amended, ("RCRA") to
reclassify oil and gas production wastes, and subject them to regulation, as
"hazardous waste." If such legislation were enacted, it could have a significant
impact on the Company's operating costs, as well as the oil and gas industry in
general. In addition, The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA" or "Superfund") and certain state
laws and regulations impose strict, and in some cases, joint and several,
liability for cleanup of waste sites, damages to natural resources and, in some
circumstances, trebling of clean-up costs. Although the Company will from time
to time generate or handle materials that may be classified as hazardous waste
under RCRA or hazardous substances under CERCLA, the Company is not aware of any
material obligation or liability under any statute.
The Company believes that it is in substantial compliance with current
applicable environmental laws and regulations and that continued compliance with
existing requirements will not have a material adverse impact on the Company. It
is not anticipated that the Company will be required in the near future to
expend amounts that are material in relation to its total capital expenditures
program by reason of environmental laws and regulations, but inasmuch as such
laws and regulations are frequently changed, the Company is unable to predict
the ultimate cost of compliance.
Although the Company maintains insurance against some, but not all, of the
risks described above, including insuring the costs of clean-up operations,
public liability and physical damage, there is no assurance that such insurance
will be adequate to cover all such costs or that such insurance will continue to
be available in the future or that such insurance will be available at premium
levels that justify its purchase. The occurrence of a significant event not
fully insured or indemnified against could have a material adverse effect on the
Company's financial condition and operations.
EMPLOYEES
At June 30, 1995, the Company had 11 full-time employees. The Company
believes its relationship with its employees is satisfactory. The Company also
employs technical consultants from time to time. HarCor is not materially
dependent on any of such consultants.
LEGAL PROCEEDINGS
No material lawsuits are pending or, to the best of the Company's
knowledge, have been threatened against it. Due to the nature of its business,
however, the Company may be, from time to time, a party to certain legal or
administrative proceedings arising in the ordinary course of its business.
OFFICE FACILITIES
The Company's corporate headquarters are located at Five Post Oak Park,
Suite 2220, Houston, Texas in rented office space. Prior to July 1993, the
Company's corporate headquarters were located at 11766 Wilshire Boulevard, Suite
720, Los Angeles, California.
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<PAGE> 61
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The names and ages of the Company's executive officers and directors, the
principal occupation or employment of each of them during the past five years
and at present, the name and principal business of the corporation or other
organization, if any, in which such occupation or employment is or was carried
on, directorships of other public companies or investment companies held by
them, and the period during which the directors have served in that capacity
with the Company are set forth below.
<TABLE>
<CAPTION>
PRESENT POSITION DIRECTOR
NAME AGE WITH THE COMPANY SINCE
- -------------------------------- --- --------------------------------------- --------
<S> <C> <C> <C>
Mark G. Harrington.............. 42 Chairman of the Board of Directors and 1987
Chief Executive Officer
Francis H. Roth................. 57 President, Chief Operating Officer and 1989
Director
Gary S. Peck.................... 42 Vice President -- Finance, Chief
Financial Officer and Secretary
Albert J. McMullin.............. 38 Vice President -- Land, Contracts and
Acquisitions
Daryl H. Connolly(1)............ 48 Director 1989
Robert J. Cresci................ 51 Director 1994
Vinod K. Dar.................... 44 Director 1992
David E. K. Frischkorn, Jr. .... 44 Director 1992
Ambrose K. Monell............... 40 Director 1987
Herbert L. Oakes................ 49 Director 1992
James H. Rawls(1)............... 42 Director 1992
Robert A. Shore................. 48 Director 1994
</TABLE>
- ---------------
(1) Each of Messrs. Connolly and Rawls will resign as directors of the Company
effective at the Company's 1995 annual meeting of shareholders.
Mr. Harrington has been Chairman of the Board of Directors and Chief
Executive Officer of the Company since May 1987. He also is President and
controlling shareholder of Harrington and Company International Incorporated
("Harrington and Company"), an investment company which he founded in 1986, and
which is the general or managing partner of several limited partnerships which
in the aggregate own approximately 9.6% of the outstanding Common Stock. In
1977, he joined Carl H. Pforzheimer and Co., an investment banking firm, where
he became a partner in 1980 and remained as a partner until December 1985.
During his eight years with Carl H. Pforzheimer and Co., he worked in the firm's
research and corporate finance departments. In 1984, Mr. Harrington helped
organize Chipco Energy Corporation, the holding company for the firm's oil and
gas assets. He is a director of HCO Energy Ltd. and Jefferson Gas Systems, Inc.
Mr. Harrington holds a Bachelor of Business Administration degree and a Master
of Business Administration degree, both in finance, from the University of
Texas.
Mr. Roth has been President and Chief Operating Officer of the Company
since March 1989. Prior to that time, he served as Vice President -- Production
of the Company since July 1988. He has been employed in various engineering
positions with both Amoco and Chevron in several geographic locations. Prior to
joining the Company, he had been employed for 16 years by MCO Resources, Inc.,
an oil and gas company, in various positions, including General Manager of
Operations and Engineering. He also served as Vice President of Drilling and
Production and Engineering for MCOR Oil and Gas Corporation, a subsidiary of MCO
Resources, Inc. Mr. Roth holds a Bachelor of Science degree in petroleum
engineering from the University of Kansas, a Master of Science degree in
petroleum engineering from the University of Oklahoma and a Master of Business
Administration degree from the University of California.
Mr. Peck joined the Company as Vice President -- Finance and Chief
Financial Officer in October 1989 and became Secretary in November 1989. Prior
to joining the Company, Mr. Peck acted as a financial
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<PAGE> 62
consultant to the Company. Mr. Peck was Director of Finance for Herbert L.
Farkas Company (a multi-location furniture and business equipment concern) from
1987 to 1989 and was Vice President -- Finance and Chief Financial Officer of
RAWA, Inc. (a franchising and car rental company) from 1985 to 1987. Prior to
that, Mr. Peck had approximately seven years' experience in oil and gas
accounting management with Minoco Southern Corporation and MCO Resources, Inc.
He graduated from California State University at Long Beach in 1977 with a
Bachelor of Science degree in accounting and finance.
Mr. McMullin joined the Company as Vice President -- Land, Contracts and
Acquisitions in August 1992. Prior to joining the Company, Mr. McMullin was a
gas supply manager for Mitchel Marketing Company since 1991 and for Delhi Gas
Pipeline Corporation during 1990. Mr. McMullin also worked as an Accounts
Manager for United Gas Pipeline from 1987 to 1989. From 1980 to 1985, Mr.
McMullin worked for Atlantic Richfield Company as a landman. He holds a Bachelor
of Arts degree in petroleum land management from the University of Texas and
earned a Masters in Business Administration from the University of St. Thomas.
Mr. Connolly has been President and a director of HCO Energy Ltd., an oil
and gas company located in Calgary, Alberta, Canada, since 1987. Prior to
January 19, 1993, HCO Energy Ltd. was an affiliate of the Company. From February
1984 until 1987, Mr. Connolly was Vice President and General Manager of Bralorne
Resources Limited (an oil and gas company), located in Calgary, and was a
consultant to the government of Denmark for one year. Mr. Connolly is a
petroleum engineer with approximately 25 years of industry experience including
seven years with Texaco Canada, Inc. and four years with Bluesky Oil and Gas
Ltd.
Mr. Cresci has served as a Managing Director of Pecks Management Partners
Ltd., an investment management firm, since September 1990. From 1985 to 1990 Mr.
Cresci was Vice President of Alliance Capital Management L.P. Mr. Cresci
currently serves as a director of Serv-Tech, Inc., EIS International, Inc.,
Sepracor, Inc., Vestro Natural Foods, Inc., Olympic Financial, Ltd., GeoWaste,
Inc., Hitox, Inc., Natures Elements, Inc., Garnet Resources Corporation, Meris
Laboratories, Inc. and several private companies.
Mr. Dar has been President and Chairman of Jefferson Gas Systems, Inc. (a
natural gas and electric power co-investment concern) since May 1991, and the
Managing Director of Dar & Company (a consulting firm to energy companies and
financial institutions) since August 1990. Currently, he is Senior Advisor of
RCG/Hagler, Bailly & Company, an international management consulting firm he
helped found in 1980. He was also the Chairman of Sunrise Energy Services, Inc.
between 1992 and 1994. Since 1980, Mr. Dar has held a variety of executive
positions in the natural gas industry and with management consulting firms. He
has been the Senior Vice President of American Exploration Company, an oil and
gas firm, and Executive Vice President and Director of Hadson Corporation, a
diversified public company. He was the founder and Chief Executive Officer of
four major Hadson subsidiaries, Hadson Gas Systems, Hadson New Mexico, Hadson
Liquid Fuels and Hadson Electric. He has a Bachelor of Science degree in
engineering and a Master's degree in management and finance from MIT, where he
also received his doctoral training in economics.
Mr. Frischkorn has been Senior Vice President and Managing Director of the
Energy Corporate Finance Department of Rauscher Pierce Refsnes, Inc., an
investment banking firm, since January 1993. From 1988 to 1992, he was President
of Frischkorn & Co., a Houston, Texas-based merchant banking firm specializing
in oil and gas corporate finance services. Prior to that he served as Vice
President, Energy Group of Kidder, Peabody & Co. in Houston, Texas and Senior
Vice President, Corporate Finance of Rotan Mosle, Inc. in Houston. He holds a
Bachelor of Arts degree in economics and German from Tufts University and a
Masters of Business Administration from Columbia.
Mr. Monell has been Vice President and a director of Harrington and Company
since 1986. He has been active in the oil and gas industry since 1976. In 1976,
he co-founded Alexander & Ambrose Oil Corporation, a privately-held Denver-based
exploration company. He graduated from the University of Virginia in 1976 with a
Bachelor of Science degree in foreign affairs.
Mr. Oakes is Managing Director and a principal of Oakes, Fitzwilliams & Co.
Limited, a member of the London Stock Exchange, which he founded in 1987. In
1973, he joined Dillon, Read & Co. Inc., an
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<PAGE> 63
investment banking firm, in London. In 1982, he formed H. L. Oakes & Co. Limited
specializing in arranging venture and development capital for U.S. and U.K.
corporations. He is a director of California Energy Company, Inc., Shared
Technologies, Inc., The New World Power Corporation and a number of private
corporations in the U.S. and the U.K.
Mr. Rawls has been President of Hughes-Rawls Corporation in Jackson,
Mississippi, an oil and gas exploration reserve acquisition concern, since 1989
and is a director of Harrington and Company. Mr. Rawls is a registered petroleum
engineer with 24 years of experience in the oil industry. Mr. Rawls began his
career at Exxon Company and after leaving Exxon joined Deposit Guaranty National
Bank in Jackson. He was Senior Vice President at Deposit Guaranty National Bank
from 1981 to 1988 and served as head of its energy lending group. From 1988 to
1989, he served as Executive Vice President of Hughes Eastern Petroleum, Inc. He
holds a Bachelor of Science degree from Mississippi State University and
attended Northwestern University's Management School for Corporate Bankers.
Mr. Shore was founder and has been Chief Executive Officer of Bakersfield
Energy Resources, Inc. since 1990. He is responsible for evaluating and
negotiating acquisitions, and planning the development of oil and gas properties
for Bakersfield Energy Resources, Inc. For 20 years prior to founding
Bakersfield Energy Resources, Inc., Mr. Shore held various engineering,
supervisory and management positions with Mission Resources, Texaco Inc. and
Getty Oil Company in California. Mr. Shore holds a Bachelor of Science degree in
petroleum engineering from Stanford University. He is a member of the American
Petroleum Institute, the Society of Petroleum Engineers and the California
Independent Petroleum Association. Mr. Shore also serves as a Director of the
Stanford University Petroleum Investment Fund.
COMMITTEES AND MEETINGS OF THE BOARD OF DIRECTORS
The Board of Directors has established an Audit Committee, a Stock Option
and Compensation Committee and an Executive Committee. The Company does not have
a nominating committee.
The current member of the Audit Committee is David E. K. Frischkorn, Jr.
The responsibilities of the Audit Committee include reviewing the scope and
results of audits by the Company's independent auditors, the Company's
compliance with all accounting and financial reporting requirements, the
Company's internal accounting controls, the scope of other services performed by
independent auditors, and the cost of all accounting and financial services, and
to make recommendations to the Board of Directors as to the appointment of the
Company's independent auditors. The Audit Committee held one meeting during
1994.
The current members of the Stock Option and Compensation Committee are
Vinod K. Dar, Daryl H. Connolly and Herbert L. Oakes. The functions of the Stock
Option and Compensation Committee are to monitor the Company's executive
compensation plans, practices and policies, including all salaries, bonus and
stock option awards and fringe benefits, and to make recommendations to the
Board of Directors as to changes in existing executive compensation plans and
the formulation and adoption of new executive compensation plans. The Stock
Option and Compensation Committee held two meetings during 1994.
The Board of Directors established the Executive Committee on June 22,
1993. Its current members are James H. Rawls and Daryl H. Connolly. The
functions of the Executive Committee are to approve certain executive actions of
the Company's officers and to keep the Board of Directors informed of any such
actions. The Executive Committee did not hold any meetings during 1994.
During the year ended December 31, 1994, the Board of Directors held six
meetings. In 1994, each incumbent director attended at least 75% of the
aggregate of the total number of meetings of the Board of Directors and the
total number of meetings held by all committees on which he served (in each case
held during the periods that he served).
COMPENSATION OF DIRECTORS
During 1994, nonemployee members of the Board of Directors received annual
compensation of $10,000 plus $1,000 for each meeting of the Board of Directors
attended in person ($250 per telephonic meeting) and reimbursement for their
reasonable expenses incurred in connection with their duties and functions as
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<PAGE> 64
directors. Directors of the Company who are also employees do not receive any
compensation for their services as directors.
On October 14, 1992, the Board of Directors adopted the Company's 1992
Nonemployee Directors' Stock Option Plan (the "Directors' Option Plan"). Under
the Directors' Option Plan, upon the later of the effective date of the
Directors' Option Plan or the date of their initial election or appointment to
the Board of Directors, directors who are not employees of the Company were
granted options to purchase 20,000 shares of Common Stock at an exercise price
equal to the fair market value of the Common Stock on the date of grant.
Thereafter, and so long as the Directors' Option Plan is in effect, upon the
completion of each full year of service on the Board of Directors, each
nonemployee director continuing to serve as a director will automatically be
granted an additional option to purchase 5,000 shares of Common Stock at an
exercise price equal to 110% of the fair market value of the Common Stock on the
date of grant. All options granted under the Directors' Option Plan vest in
equal parts over two years.
Upon their initial appointment to the Board of Directors effective July 6,
1994, Messrs. Cresci and Shore were each granted options to purchase 20,000
shares of common stock at an exercise price of $3.375 per share which was equal
to 100% of the fair market value of the common stock on such date.
Upon completion of each of their first and second full years of service
after the effective date of the Directors' Option Plan (October 14, 1993 and
1994), Messrs. Connolly, Dar, Frischkorn, Monell and Rawls were each
automatically granted options to purchase 5,000 shares of Common Stock at an
exercise price equal to $4.33125 per share, 110% of the fair market value of the
Common Stock on such date. Upon the first and second anniversary of his initial
election to the Board of Directors (November 17, 1993 and 1994), Mr. Oakes was
automatically granted options to purchase 5,000 shares of Common Stock at an
exercise price equal to $3.85 per share, 110% of the fair market value of the
Common Stock on such date.
EXECUTIVE COMPENSATION
The following table sets forth certain information regarding compensation
earned during 1994 by the Company's Chief Executive Officer and each of the
Company's two other most highly compensated executive officers (collectively,
the "Named Executive Officers") based on salary and bonus earned in 1994:
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
ANNUAL COMPENSATION AWARDS
------------------------------------- ----------
OTHER SECURITIES
NAME AND ANNUAL UNDERLYING ALL OTHER
PRINCIPAL POSITION YEAR SALARY BONUS COMPENSATION(1) OPTIONS(2) COMPENSATION(3)
- ---------------------------- ---- -------- ------- --------------- ---------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Mark G. Harrington.......... 1994 $190,000 $62,500 $ -0- 148,750 $ 3,699
Chairman of the Board 1993 190,000 7,917 -0- 40,000 3,455
and Chief Executive
Officer
Francis H. Roth............. 1994 125,000 32,500 -0- 75,625 5,113
President and Chief 1993 125,000 5,208 -0- 25,000 4,779
Operating Officer
Gary S. Peck................ 1994 100,000 17,500 -0- 42,500 2,306
Vice President -- 1993 100,000 4,167 -0- 17,500 2,156
Finance, Chief Financial
Officer and Secretary
</TABLE>
- ---------------
(1) Does not include perquisites and other personal benefits because the value
of these items did not exceed the lesser of $50,000 or 10% of reported
salary and bonus of any of the Named Executive Officers.
(2) No stock appreciation rights ("SARs") were granted to any of the Named
Executive Officers during 1993 and 1994.
(3) Such amounts were premiums paid by the Company for annual disability
insurance for each such officer.
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<PAGE> 65
STOCK OPTION GRANTS DURING 1994
The following table provides details regarding stock options granted to the
Named Executive Officers in 1994. The Company does not have any outstanding
SARs.
OPTION GRANTS IN 1994
<TABLE>
<CAPTION>
NUMBER OF % OF TOTAL
SECURITIES UNDERLYING OPTIONS GRANTED EXERCISE OR
OPTIONS GRANTED TO EMPLOYEES BASE PRICE
NAME (#)(1) IN 1994 ($/SH)(2) EXPIRATION DATE
- --------------------------------- --------------------- --------------- ----------- ---------------
<S> <C> <C> <C> <C>
Mark G. Harrington............... 125,000 48.1% $3.71 July 6, 1999
Francis H. Roth.................. 60,000 23.1% $3.38 July 6, 1999
Gary S. Peck..................... 30,000 11.5% $3.38 July 6, 1999
</TABLE>
- ---------------
(1) Fifty percent of the options were vested immediately upon grant and the
remaining 50% become exercisable upon a successful completion of a secondary
public sale of the Company's equity securities. If the Company recapitalizes
or otherwise changes its capital structure, thereafter upon any exercise of
an option the optionee will be entitled to purchase, in lieu of the number
and class of shares of Common Stock then covered by such option, the number
and class of shares of stock and securities to which the optionee would have
been entitled pursuant to the terms of the recapitalization if, immediately
prior to such recapitalization, the optionee had been the holder of record
of the number of shares of Common Stock then covered by such option. If
there is a Corporate Change, as defined in the 1994 Stock Option Plan, then
the Stock Option and Compensation Committee, acting in its sole discretion,
has the following alternatives, which may vary among individual optionees:
(1) accelerate the time at which options then outstanding may be exercised,
(2) require the surrender to the Company by selected optionees of some or
all of the outstanding options held by such optionees, in which event the
Committee will thereupon cancel such options and pay to each optionee a
certain amount of cash or (3) make such adjustments to the options then
outstanding as the Committee deems appropriate to reflect such Corporate
Change. Any adjustment provided for pursuant to this paragraph will be
subject to any required stockholder action.
(2) The exercise price per share with respect to the stock options granted to
Messrs. Roth and Peck in 1994 is equal to the closing bid price of the
Common Stock on the date of grant thereof, as quoted by the National
Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ"). Pursuant to the terms of the 1994 Stock Option Plan, because Mr.
Harrington is deemed to own more than 10% of the Common Stock, the exercise
price per share of all options granted to him in 1994 was 110% of the
closing bid price of the Common Stock on the date of grant thereof, as
quoted by NASDAQ.
1994 OPTION EXERCISES AND OUTSTANDING STOCK OPTION VALUES AS OF DECEMBER 31,
1994
The following table shows the number of shares acquired by the Named
Executive Officers upon their exercise of stock options during 1994, the value
realized by such Named Executive Officers upon such exercises, the number of
shares of Common Stock covered by both exercisable and non-exercisable stock
options as of December 31, 1994 and their values at such date.
AGGREGATED OPTION EXERCISES IN 1994
AND OPTION VALUES AT DECEMBER 31, 1994
<TABLE>
<CAPTION>
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
OPTIONS AT IN-THE-MONEY OPTIONS AT
SHARES VALUE DECEMBER 31, 1994(#) DECEMBER 31, 1994($)(2)
ACQUIRED ON REALIZED ----------------------------- -----------------------------
NAME EXERCISE(#) ($)(1) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- -------------------- ----------- -------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Mark G.
Harrington........ -0- N/A 184,500 82,500 24,000 -0-
Francis H. Roth..... -0- N/A 90,000 42,500 24,000 -0-
Gary S. Peck........ 15,000 21,563 92,750 23,750 44,000 -0-
</TABLE>
- ---------------
(1) The closing bid price of the Common Stock as quoted by NASDAQ on September
30, 1994, the date of exercise of such options, was $3.625. The value
realized is calculated on the basis of the difference between the exercise
price of such options and $3.625, multiplied by the number of shares of
Common Stock issued upon exercise. The exercise price of the options
exercised by Mr. Peck was $2.1875 per share.
(2) On December 31, 1994, the closing bid price of the Common Stock as quoted by
NASDAQ was $3.00 per share. Value is calculated on the basis of the
difference between the option price and $3.00, multiplied by the number of
shares of Common Stock granted at that option price. The option price for
exercisable options granted to Mr. Harrington, Mr. Roth and Mr. Peck
covering 30,000, 30,000 and 55,000 shares, respectively, is $2.20 per share.
The option prices for the remaining exercisable options and all of the
unexercisable options are higher than $3 and therefore no value is ascribed
to such options in the above table.
61
<PAGE> 66
1994 RESTRICTED SHARE GRANTS AND RESTRICTED SHARE VALUES AS OF DECEMBER 31, 1994
The following table shows the number of restricted shares of common stock
granted to the Named Executive Officers during 1994 and their values at December
31, 1994:
RESTRICTED STOCK GRANTS IN 1994 AND
RESTRICTED STOCK VALUES AT DECEMBER 31, 1994
<TABLE>
<CAPTION>
NUMBER AND VALUE OF
RESTRICTED SHARES AT
DECEMBER 31, 1994
RESTRICTED RESTRICTED --------------------
SHARES SHARE VALUE SHARES
NAME GRANTED (#) ($) (#) VALUE ($)
- ------------------------------------------------ ----------- ----------- ------ ---------
<S> <C> <C> <C> <C>
Mark G. Harrington.............................. 23,750 95,000 23,750 71,250
Francis H. Roth................................. 15,625 62,500 15,625 46,875
Gary S. Peck.................................... 12,500 50,000 12,500 37,500
</TABLE>
- ---------------
(1) The Restricted Shares may not be sold, tendered, assigned, transferred,
pledged or otherwise encumbered prior to the earliest of April 28, 1997
(lapse date), the date of a grantee's death or disability, or the date of a
"Change of Control" of the Company, as defined in the Restricted Stock
Agreement. In the event that a grantee terminates employment with the
Company prior to the lapse date, the Restricted Shares shall revert back to
the Company; provided, however, in the event a grantee is involuntarily
terminated for any reason other than cause, the Compensation Committee of
the Board of Directors of the Company administering this Agreement may, at
its sole discretion, determine to release a prorated number of Restricted
Shares, based on the number of months of active employment service during
the restriction period, as a percentage of the total months of the
restriction period.
(2) The Restricted Share value is calculated by multiplying the number of
Restricted Shares granted by the "Current Stock Price" per share, as defined
and set out in a specified formula, equal to the high bid price of the
common stock as quoted by NASDAQ on April 28, 1994, which was $4.00 per
share.
(3) The value of Restricted Shares at December 31, 1994 is calculated by
multiplying the number of Restricted Shares by the December 31, 1994 closing
bid price of the common stock as quoted by NASDAQ, which was $3.00 per
share.
62
<PAGE> 67
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The following table sets forth information as to the number and percentage
of shares of Common Stock owned beneficially as of August 1, 1995 by (i) each
person known to the Company to be the beneficial owner of more than 5% of the
Common Stock, (ii) each director and each nominee for election as a director,
(iii) each Named Executive Officer and (iv) all directors and officers of the
Company as a group. Unless otherwise indicated in the footnotes following the
table, the named beneficial owner had sole voting and investment power over the
shares of Common Stock shown as beneficially owned by them.
<TABLE>
<CAPTION>
SHARES OWNED
BENEFICIALLY PERCENT
AS OF OF
8/1/95(1)(2) CLASS
------------- -------
<S> <C> <C>
Harrington and Company International Incorporated(3).................. 729,968 8.4
Daryl H. Connolly(4).................................................. 22,850 *
Robert J. Cresci(4)(5)................................................ 1,110,000 12.8
Vinod K. Dar(4)(6).................................................... 172,500 2.0
David E.K. Frischkorn, Jr.(4)(7)...................................... 47,500 *
Mark G. Harrington(4)(8).............................................. 938,218 10.6
Ambrose K. Monell(4).................................................. 41,421 *
Herbert L. Oakes(4)................................................... 22,500 *
Gary S. Peck(4)....................................................... 122,750 1.4
James H. Rawls(4)..................................................... 23,100 *
Francis H. Roth(4).................................................... 148,125 1.7
Robert A. Shore(4)(9)................................................. 1,108,084 11.7
AGF Management Ltd.(10)............................................... 692,500 8.0
Bakersfield Energy Resources, Inc.(11)................................ 1,098,084 11.6
Granite Capital L.P.(12).............................................. 612,092
Pecks Management Partners Ltd.(13).................................... 1,100,000 12.7
Trust Company of the West(14)......................................... 1,728,009 19.4
Wellington Management Company(15)..................................... 507,900 5.9
All Directors and Officers as a group (20 persons)(8)(9)(16).......... 3,785,548 36.8
</TABLE>
- ---------------
* Less than 1%
(1) Information with respect to beneficial ownership is based on information
publicly available or furnished to the Company by each person included in
this table.
(2) Includes, in each case, shares deemed beneficially owned by such persons or
entities pursuant to Rule 13d-3 promulgated under the Securities Exchange
Act of 1934, as amended, because such persons or entities have the right to
acquire such shares within 60 days upon the exercise of stock options or
similar rights or because such persons or entities have or share investment
or voting power with respect to such shares.
(3) The business address of Harrington and Company International Incorporated is
4400 Post Oak Parkway, Suite 2220, Houston, Texas 77027. Such amount
includes (i) 372,305 shares held by Harrington and Company EV Fund I, Ltd.,
and (ii) 309,868 shares held by Harrington and Company EV Fund II, Ltd.
(71,429 shares of which are issuable within 60 days upon conversion of
Series A Preferred Stock held by Harrington and Company EV Fund II, Ltd.),
of which limited partnerships Harrington and Company International
Incorporated is the general or managing partner. The shares held by each
such limited partnership are also deemed to be beneficially owned by such
limited partnership. Harrington and Company International Incorporated
disclaims beneficial ownership of such shares.
(4) Includes 22,500, 10,000, 22,500, 22,500, 184,500, 22,500, 22,500, 92,750,
22,500, 90,000 and 10,000 shares for Messrs. Connolly, Cresci, Dar,
Frischkorn, Harrington, Monell, Oakes, Peck, Rawls, Roth and Shore,
respectively, purchasable within 60 days upon the exercise of stock options.
(5) Includes 1,100,000 shares deemed to be beneficially owned by Pecks
Management Partners Ltd., of which Mr. Cresci is a managing director (See
Footnote 13). As a result, Mr. Cresci may be deemed to share voting and
investment power with respect to such shares. Mr. Cresci disclaims
beneficial ownership of such shares.
63
<PAGE> 68
(6) Includes 150,000 shares purchasable within 60 days upon the exercise of
options held by Jefferson Gas Systems, Inc. of which Mr. Dar is the Chief
Executive Officer and a Director. Such option is exercisable only upon the
Company's exercise of its option to purchase 150,000 Common Shares of
Jefferson Gas Systems, Inc.
(7) Includes 25,000 shares issuable within 60 days upon the exercise of options
held by Rauscher Pierce Refsnes, Inc., of which Mr. Frischkorn is a Senior
Vice President and Managing Director. As a result, Mr. Frischkorn may be
deemed to share voting and investment power with respect to such shares.
Mr. Frischkorn disclaims beneficial ownership of such shares.
(8) Mr. Harrington is the Chief Executive Officer and Chairman of the Board of
Directors of the Company. The number of shares indicated includes 729,968
shares deemed to be beneficially owned by Harrington and Company
International Incorporated (see footnote 3 above) of which Mr. Harrington
is the majority stockholder, the President and a director. As a result,
voting and investment power over such shares may be deemed to be shared
between Mr. Harrington and Harrington and Company International
Incorporated. Mr. Harrington disclaims beneficial ownership of such shares.
(9) Includes 1,098,084 shares deemed to be beneficially owned by Bakersfield
Energy Resources, Inc., of which Mr. Shore is the Chief Executive Officer
and a director (see Footnote 11). As a result, Mr. Shore may be deemed to
share voting and investment power with respect to such shares. Mr. Shore
disclaims beneficial ownership of such shares.
(10) The principal business address for AGF Management Ltd. is P.O. Box 50,
Toronto Dominion Bank Tower, 31st Floor, Toronto, Ontario M5K 1E9. Includes
550,000 shares beneficially owned by AGF Growth Equity Fund and 142,500
shares beneficially owned by AGF Canadian Resources Fund. AGF Management
Ltd. is the investment manager of AGF Growth Equity Fund and AGF Canadian
Resources Fund and as such has shared voting and investment power over all
of such shares. AGF Management Ltd. disclaims beneficial ownership of all
of such shares.
(11) The principal business address for Bakersfield Energy Resources, Inc. is
2131 Mars Court, Bakersfield, California 93308. Includes 857,143 shares of
common stock issuable to Bakersfield Gas, L.P. upon its conversion of
30,000 shares of Series E Preferred Stock, of which limited partnership
Bakersfield Energy Resources, Inc. is the general or managing partner. The
shares held by such limited partnership are also deemed to be beneficially
owned by such limited partnership.
(12) The principal business address for Granite Capital L.P. is 375 Park Avenue,
18th Floor, New York, New York 10152. Includes 256,400 shares of common
stock issuable within 60 days upon conversion of 10,000 shares of the
Series C Preferred Stock. Also includes 45,000 shares beneficially owned by
an affiliate of Granite Capital L.P. and 3,000 shares beneficially owned by
certain managed accounts for which Granite Capital is the investment
manager and shares voting and investment power. Granite Capital L.P.
disclaims beneficial ownership of such 3,000 shares.
(13) The principal business address for Pecks Management Partners Ltd. is One
Rockefeller Plaza, New York, New York 10020. All such shares are
beneficially owned by three investment advisory clients of Pecks Management
Partners Ltd. As investment manager for such clients, Pecks Management
Partners Ltd. may be deemed to share voting and investment power with
respect to such shares.
(14) The business address of Trust Company of the West ("TCW") is 865 South
Figueroa, Suite 1800, Los Angeles, CA 90017. Includes 200,257 shares
purchasable within 60 days upon the exercise of a warrant held by TCW.
Includes 1,474,359 shares beneficially owned by a General Mills pension
fund, which shares TCW controls voting and investment power as Investment
Manager and Custodian. TCW disclaims beneficial ownership of the 1,474,359
shares.
(15) The principal business address for Wellington Management Company is 75
State Street, Boston, Massachusetts 02109. Such shares are also deemed
beneficially owned by Wellington Trust Co., N.A., a subsidiary of
Wellington Management Company.
(16) Includes 725,750 shares purchasable within 60 days upon the exercise of
stock options or warrants held or deemed to be owned by all officers and
directors.
Holders of the Company's Series B, C and E Preferred Stock have certain
voting rights, including the right to vote together with the holders of the
common stock on all matters voted upon by the holders of the common stock. In
all such matters, holders of the Series B, C and E Preferred Stock have the
number of votes per share of such preferred stock equal to the whole number of
shares of common stock into which each share of such preferred stock is
convertible. The outstanding shares of Series B Preferred Stock are held by (i)
Citibank, N.A., as Trustee for the United Technologies Corporation Master
Retirement Trust, United Technologies Building, Hartford, Connecticut 06101
(25%), (ii) Bankers Trust Company, as Trustee of the Hughes Aircraft Company
Retirement Plan, 7200 Hughes Terrace, Los Angeles, California 90045-0066 (25%),
and (iii) Bankers Trust Company, as Trustee of the GTE Service Corporation Plan
for Employees' Pensions, One Stamford Place, Stamford, Connecticut 06904 (50%).
All of the outstanding shares of the Series C Preferred Stock are held by
Granite Capital Partners, L.P., 666 Fifth Avenue, 33rd Floor, New York, New York
10103. All outstanding shares of the Series E Preferred Stock are held by
Bakersfield Gas, L.P., 2131 Mars Court, Bakersfield, California 93308.
64
<PAGE> 69
TRANSACTIONS WITH RELATED PARTIES
The Company incurred expenses of approximately $150,000 in 1994 for
investment banking advice to the investment banking firm of Rauscher Pierce
Refsnes, Inc., of which David E.K. Frischkorn, Jr., a director of the Company,
is a Managing Director.
Vinod K. Dar, one of the Company's directors, was the Chairman of the Board
of Directors and Chief Executive Officer of Sunrise Energy Services, Inc.
("Sunrise Energy") from October 1992 to October 1994. As part of the Company's
acquisition of the Bakersfield Properties, the Company was assigned an interest
in a previously existing gas marketing contract with Sunrise Energy Marketing
Company ("Sunrise Marketing"), a subsidiary of Sunrise Energy, whereby Sunrise
Marketing agreed to pay $1.97 per one million British thermal units ("MMBtu")
for the delivery of 2,250 MMBtu of gas per day from the Bakersfield Properties
during June, July and August of 1994. As of December 20, 1994, Sunrise Marketing
owed the Company approximately $92,000 for gas delivered by the Company during
the term of such contract. On November 15, 1994, Sunrise Marketing filed a
voluntary petition for protection under Chapter 11, Title 11 of the United
States Bankruptcy Code. The $92,000 amount owed to the Company by Sunrise
Marketing is an unsecured claim and, as such, the Company is unable to determine
whether such amount will be paid and if such amount is paid in full or in part,
when such amount will be paid.
The Company completed an agreement with Bakersfield Gas, L.P. in June 1995
for the exchange of a warrant to purchase 1,000,000 shares of Common Stock for
182,500 shares of Common Stock of the Company. Robert A. Shore, one of the
Company's directors, is the Chief Executive Officer of Bakersfield Energy
Resources, Inc., the general partner of Bakersfield Gas, L.P. See Note 6 of
Notes to Interim Consolidated Financial Statements and "Security Ownership of
Certain Beneficial Owners and Management."
The Company completed an agreement with the Series D Holders, concurrently
with the completion of the Unit Offering, for the exchange of warrants to
purchase 3,424,666 shares of Common Stock for 1,100,000 shares of Common Stock
of the Company. Robert J. Cresci, one of the Company's directors, is a managing
director of Pecks Management Partners Ltd., the investment advisor to the Series
D Holders. See Note 6 of Notes to Interim Consolidated Financial Statements and
"Security Ownership of Certain Beneficial Owners and Management."
65
<PAGE> 70
DESCRIPTION OF NOTES
The Series A Notes were and the Exchange Notes will be issued under an
indenture (the "Indenture"), dated as of July 24, 1995, by and among the
Company, the Guarantors and Texas Commerce Bank National Association, as Trustee
(the "Trustee"). The following summary of certain provisions of the Indenture,
the Security Documents, the Notes and the Guarantees does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
the Trust Indenture Act of 1939, as amended (the "TIA"), and to all of the
provisions of the Indenture and the Security Documents (copies of which can be
obtained from the Company upon request), including the definitions of certain
terms therein and those terms made a part of the Indenture by reference to the
TIA as in effect on the date of the Indenture. The definitions of certain
capitalized terms used in the following summary are set forth under "-- Certain
Definitions" below.
The Series A Notes were and the Exchange Notes will be issued in fully
registered form only, without coupons, in denominations of $1,000 and integral
multiples thereof. The Trustee is currently acting as Paying Agent and Registrar
for the Notes. The Notes may be presented for registration of transfer and
exchange at the offices of the Registrar, which currently is the Trustee's
corporate trust office. The Company may change any Paying Agent and Registrar
without notice to Holders of the Notes. The Company will pay principal (and
premium, if any) on the Notes at the Trustee's corporate office in New York, New
York. At the Company's option, interest may be paid at the Trustee's corporate
trust office or by wire transfer or check mailed to the registered address of
Holders. Any Series A Notes that remain outstanding after the completion of the
Exchange Offer, together with the Exchange Notes issued in connection with the
Exchange Offer, will be treated as a single class of securities under the
Indenture.
PRINCIPAL, MATURITY AND INTEREST
The Notes are limited in aggregate principal amount to $65,000,000 and will
mature on July 15, 2002. Interest on the Notes will accrue at the rate per annum
and will be payable semiannually on each January 15 and July 15 commencing on
January 15, 1996, to the persons who are registered Holders at the close of
business on the January 1 and July 1 immediately preceding the applicable
interest payment date. Interest on the Notes will accrue from and including the
most recent date to which interest has been paid or, if no interest has been
paid, from and including the Issue Date. The Company will pay interest on
overdue principal and on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the rate of 2% per
annum in excess of the rate shown on the cover page of this Prospectus. Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day
months.
OPTIONAL REDEMPTION
The Notes will be redeemable, at the Company's option, in whole at any time
or in part from time to time, on and after July 15, 1999, at the following
redemption prices (expressed as percentages of the principal amount) if redeemed
during the twelve-month period commencing on July 15 of the year set forth
below, plus, in each case, accrued interest thereon to the date of redemption:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
1999................................................................ 110.00%
2000................................................................ 107.00%
2001 and thereafter................................................. 100.00%
</TABLE>
SINKING FUND
There will be no mandatory sinking fund payments for the Notes.
EQUITY PROCEEDS OFFER AND REDEMPTION
In the event the Company consummates on or prior to July 15, 1997 an Equity
Offering, then following such Equity Offering the Company shall promptly make an
offer to purchase from all Holders (an "Equity Proceeds Offer"), on a date (the
"Equity Offer Purchase Date") not later than the 90th day after the date of
66
<PAGE> 71
the consummation of such Equity Offering (such consummation date to be
determined without regard to the date of the consummation of any over-allotment
option granted by the Company to the underwriters, if any) at a purchase price
equal to 110% of the aggregate principal amount of Notes to be repurchased, plus
accrued and unpaid interest thereon, if any, to the Equity Offer Purchase Date,
an aggregate principal amount of Notes equal to the lesser of (i) the maximum
principal amount of Notes such that 60% of the aggregate principal amount of
Notes originally issued remains outstanding after completion of the offer and
(ii) the maximum principal amount of the Notes which could be purchased with 50%
of the amount of net proceeds received or receivable by the Company from such
Equity Offering.
Within 30 days following the date upon which the Equity Offering is
consummated, the Company must send, by first class mail, a notice to each
Holder, with a copy to the Trustee, which notice shall govern the terms of the
Equity Proceeds Offer. Such notice will state, among other things, the Equity
Offer Purchase Date, which must be no earlier than 30 days nor later than 60
days from the date such notice is mailed, other than as may be required by law,
and the procedure which the Holder must follow to exercise such right. The
Equity Proceeds Offer is required to remain open for at least 20 Business Days
and until the close of business on the Equity Offer Purchase Date.
If an offer is made to repurchase the Notes pursuant to an Equity Proceeds
Offer, the Company will and will cause its Subsidiaries to comply with all
applicable tender offer rules and regulations under state and federal securities
laws, including, but not limited to, Section 14(e) under the Exchange Act and
Rule 14e-1 thereunder, to the extent applicable to such offer.
On or prior to July 15, 1997, the Company may, at its option, redeem Notes
with the net proceeds remaining following an Equity Proceeds Offer at a price
equal to 110% of their aggregate principal amount plus accrued and unpaid
interest thereon, if any, to the date of redemption; provided, however, that at
least 60% of the aggregate principal amount of Notes originally issued must
remain outstanding after any such redemption.
"Equity Offering" means the first offering of Qualified Capital Stock of
the Company for cash having net proceeds to the Company in excess of $5 million
following the Issue Date.
SELECTION AND NOTICE OF REDEMPTION
In the event that less than all of the Notes are to be redeemed at any
time, selection of such Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which such Notes are listed or, if such Notes are not then listed on
a national securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate; provided, however, that no Notes of
a principal amount of $1,000 or less shall be redeemed in part. Notice of
redemption shall be mailed by first-class mail at least 30 but not more than 60
days before the redemption date to each Holder of Notes to be redeemed at its
registered address. If any Note is to be redeemed in part only, the notice of
redemption that relates to such Note shall state the portion of the principal
amount thereof to be redeemed. A new Note in a principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Note. On and after the redemption date, interest
will cease to accrue on Notes or portions thereof called for redemption.
EXCESS CASH FLOW OFFER
In the event that the Company has Excess Cash Flow in excess of $2,000,000
in any fiscal year, beginning with the fiscal year ending December 31, 1996, the
Company will be required to make an offer to purchase (the "Excess Cash Flow
Offer") Notes from all Holders in an amount equal to 50% of all Excess Cash Flow
for such fiscal year (not just the amount in excess of $2,000,000) at a purchase
price equal to 101% of the principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the Excess Cash Flow Purchase Date (as defined
below). The Company may credit the principal amount of Notes acquired in the
open market and retired prior to the Excess Cash Flow Purchase Date against such
required Excess Cash Flow Offer, provided that each Note may only be so credited
once.
67
<PAGE> 72
In the event that the Company is required to make an Excess Cash Flow Offer
pursuant to the preceding sentence, prior to April 1 of the immediately
following fiscal year, the Company shall notify Holders in writing of the amount
of its Excess Cash Flow, by first-class mail, to each Holder, with a copy to the
Trustee, which notice shall also govern the terms of the Excess Cash Flow Offer.
Such notice will state, among other things, the purchase date, which must be no
later than 120 days from the end of the fiscal year referred to in the preceding
paragraph, other than as may be required by law (the "Excess Cash Flow Purchase
Date"), and the procedure which the Holder must follow to exercise such right.
The Excess Cash Flow Offer is required to remain open for at least 20 Business
Days and until the close of business on the Excess Cash Flow Purchase Date. To
the extent that an Excess Cash Flow Offer is not fully subscribed, the Company
may retain such unutilized portion of the Excess Cash Flow for general corporate
purposes.
If any offer is made to repurchase the Notes pursuant to an Excess Cash
Flow Offer, the Company will and will cause the Guarantors to comply with all
applicable tender offer rules and regulations under state and Federal securities
laws, including, but not limited to, Section 14(e) under the Exchange Act and
Rule 14e-1 thereunder, to the extent applicable to such offer.
RANKING AND GUARANTEES
The indebtedness of the Company evidenced by the Notes ranks senior in
right of payment to all future subordinated indebtedness of the Company and pari
passu in right of payment with all other existing or future unsubordinated
indebtedness of the Company. The Notes are secured by a second priority lien on
substantially all of the assets of the Company and its subsidiaries securing the
New Credit Facility. Since the New Credit Facility is secured by a first
priority lien on substantially all of the Company's and such subsidiaries'
assets, the Notes are effectively subordinated to the extent of such security
interests with respect to direct claims against those assets.
Each Guarantor unconditionally guarantees, jointly and severally, to each
Holder and the Trustee, the full and prompt performance of the Company's
obligations under the Indenture and the Notes, including the payment of
principal of and interest on the Notes. The obligations of each Guarantor are
limited to the maximum amount which, after giving effect to all other contingent
and fixed liabilities of such Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to its contribution obligations under the Indenture, will result in the
obligations of such Guarantor under the Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law. Each Guarantor
that makes a payment or distribution under a Guarantee shall be entitled to a
contribution from each other Guarantor in an amount pro rata, based on the net
assets of each Guarantor, determined in accordance with GAAP.
Each Guarantor may consolidate with or merge into or sell its assets to the
Company or another Guarantor that is a wholly-owned Subsidiary of the Company
without limitation, or with other Persons upon the terms and conditions set
forth in the Indenture. See "-- Mergers, Consolidations and Sale of Assets." In
the event all of the capital stock of a Guarantor is sold by the Company and the
sale complies with the provisions set forth in "-- Limitation on Sale of
Assets," the Guarantor's Guarantee will be released.
Separate financial statements of the Guarantors are not included herein
because such Guarantors are jointly and severally liable with respect to the
Company's obligations pursuant to the Notes, and the aggregate net assets,
earnings and equity of the Guarantors and the Company are substantially
equivalent to the net assets, earnings and equity of the Company on a
consolidated basis.
SECURITY
All of the obligations of the Company under the Notes and the Indenture are
secured by a second priority Lien on substantially all of the assets of the
Company and its subsidiaries securing the New Credit Facility (other than the
Capital Stock of the Guarantors which is pledged to secure the New Credit
Facility), which assets consist primarily of the Company's oil and gas
properties (as well as accounts receivable, inventory, general intangibles,
machinery and equipment and other assets), located in California (including the
Bakersfield Properties) and Texas, and all of the obligations of Warrior, Inc.
("Warrior") under the Indenture
68
<PAGE> 73
and its guarantee of the Notes is secured by a second priority Lien on
substantially all of the assets of Warrior securing the New Credit Facility,
which assets consist primarily of Warrior's interests in oil and gas properties
(as well as accounts receivable, inventory, general intangibles, machinery and
equipment and other assets) in New Mexico (collectively, including all other
property and assets that are from time to time subject to the Security
Documents, the "Collateral"). Each of these security interests is subject to
certain Permitted Liens, including the prior Lien in favor of the New Credit
Facility. The Company and Warrior granted such security interests pursuant to
mortgages (the "Mortgages"). The Notes will not be secured by any other
property, whether presently existing or subsequently acquired, unless a first
priority Lien in such assets is granted to secure Indebtedness Incurred under
the New Credit Facility or such assets are acquired to replace Collateral
disposed of in an Asset Sale.
If the Notes become due and payable prior to the final stated maturity
thereof for any reason or are not paid in full at the final stated maturity
thereof and after any applicable grace period has expired, at a time in which
Indebtedness is outstanding under the New Credit Facility, the Trustee will not
have the right to foreclose upon the Collateral unless the Agent, on behalf of
the lenders thereunder, forecloses upon the Collateral. Thereafter, the Trustee
has the right to foreclose upon the Collateral in accordance with instructions
from the Holders of a majority in aggregate principal amount of the Notes or, in
the absence of such instructions, in such manner as the Trustee deems
appropriate in its absolute discretion. Proceeds from the sale of Collateral
will first be applied to repay Indebtedness outstanding under the New Credit
Facility, if any, and thereafter paid to the Trustee. The proceeds received by
the Trustee will be applied by the Trustee first to pay the expenses of any
foreclosure and fees and other amounts then payable to the Trustee under the
Indenture and the Security Documents and, thereafter, to pay all amounts owing
to the Holders under the Indenture, the Notes and the Security Documents (with
any remaining proceeds to be payable to the Company or as may otherwise be
required by law).
There can be no assurance that the proceeds of any sale of the Collateral
in whole or in part pursuant to the Indenture and the related Security Documents
following an Event of Default would be sufficient to satisfy payments due on the
New Credit Facility and the Notes. By its nature, some or all of the Collateral
will be illiquid and may have no readily ascertainable market value.
Accordingly, there can be no assurance that the Collateral can be sold in a
short period of time, if saleable. While Indebtedness is outstanding under the
New Credit Facility, Holders will have no vote on any decisions with respect to
the Collateral, including the time or method of disposition thereof. To the
extent that third parties enjoy Permitted Liens, such third parties may have
rights and remedies with respect to the property subject to such Lien that, if
exercised, could adversely affect the value of the Collateral. In addition, the
ability of the Holders to realize upon the Collateral may be subject to certain
bankruptcy law limitations in the event of a bankruptcy. See "Risk
Factors -- Security for the Notes."
The collateral release provisions of the Indenture permit the release of
Collateral without substitution of collateral of equal value under certain
circumstances. See "-- Possession, Use and Release of Collateral." As described
under "-- Certain Covenants -- Limitation on Sale of Assets," the Net Cash
Proceeds of certain Asset Sales may under specified circumstances be required to
be utilized to make an offer to purchase Notes. To the extent that any such
offer to purchase Notes is not fully subscribed to by Holders thereof, the
unutilized Net Cash Proceeds may, under certain circumstances, be retained and
used by the Company free of the Lien of the Indenture and the Security
Documents.
INTERCREDITOR AGREEMENT
Prior to the consummation of the Unit Offering, the Trustee, on behalf of
the Holders of the Notes, entered into an intercreditor agreement (the
"Intercreditor Agreement") with ING Capital, as agent for the lenders under the
New Credit Facility (in such capacity, the "Agent") which was acknowledged by
the Company and Warrior. The Intercreditor Agreement provides, among other
things, that (i) the Agent has a first priority security interest in the
Collateral and the Trustee a second priority security interest therein, (ii)
that during any insolvency proceeding, the Agent and the Trustee will coordinate
their efforts to give effect to the relative priority of their security
interests in the Collateral and (iii) that following an Event of Default, all
decisions with respect to the Collateral, including the time and method of any
disposition thereof,
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will be made by the Agent. The Intercreditor Agreement also provides that the
Trustee and the Agent will provide notices to each other with respect to
acceleration of the Notes or the Indebtedness outstanding under the New Credit
Facility, as the case may be, and the commencement of any action to enforce
rights of the Trustee, the Holders of the Notes, the Agent or the Lenders under
the New Credit Facility.
CHANGE OF CONTROL
The Indenture provides that upon the occurrence of a Change of Control, the
Company will be required to offer to repurchase (the "Change of Control Offer")
all of the outstanding Notes pursuant to the offer described below, at a
purchase price equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of repurchase.
Within 30 days following the date upon which a Change of Control occurs,
the Company must send, by first class mail, a notice to each Holder, with a copy
to the Trustee, which notice shall govern the terms of the Change of Control
Offer. Such notice will state, among other things, the purchase date, which must
be no earlier than 30 days nor later than 60 days from the date such notice is
mailed, other than as may be required by law (the "Change of Control Payment
Date"). The Change of Control Offer is required to remain open for at least 20
Business Days and until the close of business on the Change of Control Payment
Date.
If a Change of Control were to occur, there can be no assurance that the
Company would have sufficient funds to pay the repurchase price for all Notes
that the Company is required to repurchase. In the event that the Company were
required to repurchase outstanding Notes pursuant to a Change of Control Offer,
the Company expects that it would need to seek third-party financing to the
extent it does not have available funds to meet its repurchase obligations.
However, there can be no assurance that the Company would be able to obtain such
financing.
If an offer is made to repurchase the Notes pursuant to a Change of Control
Offer, the Company will comply with all tender offer rules under state and
federal securities laws, including, but not limited to, Section 14(e) under the
Exchange Act and Rule 14e-1 thereunder, to the extent applicable to such offer.
CERTAIN COVENANTS
The Indenture contains, among others, the following covenants.
Limitation on Indebtedness. (a) The Indenture provides that neither the
Company nor any of its Subsidiaries will, directly or indirectly, Incur any
Indebtedness, including, without limitation, any Acquired Indebtedness (other
than Permitted Indebtedness).
(b) Notwithstanding the foregoing limitations, the Company may Incur
Indebtedness (including, without limitation, Acquired Indebtedness) and
Subsidiaries of the Company may Incur Acquired Indebtedness, in each case, if
(i) no Default or Event of Default shall have occurred and be continuing on the
date of the proposed Incurrence thereof or would result as a consequence of such
proposed Incurrence and (ii) immediately after giving effect to such proposed
Incurrence, (x) the Consolidated Fixed Charge Coverage Ratio of the Company is
at least equal to 2.5 to 1.0 if such proposed Incurrence is on or prior to July
15, 1997 and at least equal to 3.0 to 1.0 if such proposed Incurrence is
thereafter and (y) the Adjusted Consolidated Net Tangible Assets of the Company
is at least equal to 175% of the aggregate consolidated Indebtedness of the
Company and its Subsidiaries.
(c) The Company will not, directly or indirectly, in any event Incur any
Indebtedness which by its terms (or by the terms of any agreement governing such
Indebtedness) is subordinated to any other Indebtedness of the Company unless
such Indebtedness is also by its terms (or by the terms of any agreement
governing such Indebtedness) made expressly subordinate to the Notes to the same
extent and in the same manner as such Indebtedness is subordinated pursuant to
subordination provisions that are most favorable to the holders of any other
Indebtedness of the Company.
"Permitted Indebtedness" means, without duplication, each of the following:
(i) Indebtedness under the Notes, the Indenture and the Guarantees;
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(ii) Commodity Agreements of the Company; provided, however, that such
Commodity Agreements are entered into to protect the Company and its
Subsidiaries from fluctuations in the prices of commodities;
(iii) Interest Swap Obligations of the Company; provided, however,
that such Interest Swap Obligations are entered into to protect the Company
and its Subsidiaries from fluctuations in interest rates on Indebtedness
Incurred in accordance with the Indenture to the extent the notional
principal amount of such Interest Swap Obligation does not exceed the
principal amount of the Indebtedness to which such Interest Swap Obligation
relates;
(iv) additional Indebtedness Incurred by the Company not to exceed
$15,000,000 outstanding at any time;
(v) Indebtedness of a direct or indirect Subsidiary of the Company to
the Company or to a direct or indirect wholly-owned Subsidiary of the
Company for so long as such Indebtedness is held by the Company or a direct
or indirect wholly-owned Subsidiary of the Company in each case subject to
no Lien held by a Person other than the Company or a direct or indirect
wholly-owned Subsidiary of the Company; provided, that if as of any date
any Person other than the Company or a direct or indirect wholly-owned
Subsidiary of the Company owns or holds any such Indebtedness or holds a
Lien in respect of such Indebtedness, such date shall be deemed the
Incurrence of Indebtedness not constituting Permitted Indebtedness by the
issuer of such Indebtedness;
(vi) Indebtedness of the Company to a direct or indirect wholly-owned
Subsidiary of the Company for so long as such Indebtedness is held by a
direct or indirect wholly-owned Subsidiary of the Company in each case
subject to no Lien; provided, that (a) any Indebtedness of the Company to
any direct or indirect Subsidiary of the Company is unsecured and
subordinated, pursuant to a written agreement, to the Company's obligations
under the Indenture and the Notes, and (b) if as of any date any Person
other than a direct or indirect wholly-owned Subsidiary of the Company owns
or holds any such Indebtedness or any Person holds a Lien in respect of
such Indebtedness, such date shall be deemed the Incurrence of Indebtedness
not constituting Permitted Indebtedness by the issuer of such Indebtedness;
(vii) guarantees by Subsidiaries of the Company of Indebtedness of the
Company (other than Permitted Indebtedness) Incurred on or after the Issue
Date; provided, that, such Indebtedness was Incurred in compliance with the
covenant, "-- Limitation on Indebtedness"; and
(viii) Refinancing Indebtedness.
Limitation on Restricted Payments. The Indenture provides that neither the
Company nor any of its Subsidiaries will, directly or indirectly (a) declare or
pay any dividend or make any distribution (other than dividends or distributions
payable solely in Qualified Capital Stock of the Company) on shares of the
Company's Capital Stock to holders of such Capital Stock, (b) purchase, redeem
or otherwise acquire or retire for value any Capital Stock of the Company, or
any warrants, rights or options to acquire shares of any class of such Capital
Stock, other than through the exchange therefor solely of Qualified Capital
Stock of the Company or warrants, rights or options to acquire Qualified Capital
Stock of the Company, (c) make any principal payment on, purchase, defease,
redeem, prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund payment,
any Indebtedness of the Company that is subordinate or junior in right of
payment to the Notes or (d) make any Investment (other than Permitted
Investments) in any Person (each of the foregoing prohibited actions set forth
in clauses (a), (b), (c) and (d) being referred to as a "Restricted Payment"),
if at the time of such proposed Restricted Payment or immediately after giving
effect thereto, (i) a Default or an Event of Default has occurred and is
continuing or would result therefrom, or (ii) the Company is not able to Incur
at least $1.00 of additional Indebtedness in accordance with paragraph (b) of
"-- Limitation on Indebtedness" above (as if such Restricted Payment had been
made as of the last day of the Four Quarter Period), or (iii) the aggregate
amount of Restricted Payments (including such proposed Restricted Payment) made
subsequent to the Issue Date (the amount expended for such purposes, if other
than in cash, being the fair market value of such property as determined
reasonably and in good faith by the board of directors of the Company) exceeds
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or would exceed the sum of: (x) 50% of the cumulative Consolidated Net Income
(or if cumulative Consolidated Net Income shall be a loss, minus 100% of such
loss) of the Company during the period (treating such period as a single
accounting period) subsequent to the Issue Date and prior to the date of the
making of such Restricted Payment; (y) 100% of the aggregate Net Equity Proceeds
received by the Company from any Person (other than from a Subsidiary of the
Company) from the issuance and sale subsequent to the Issue Date of Qualified
Capital Stock of the Company (excluding (A) any Qualified Capital Stock of the
Company paid as a dividend on any Capital Stock of the Company and (B) any
Qualified Capital Stock of the Company with respect to which the purchase price
thereof has been financed directly or indirectly using funds (i) borrowed from
the Company or from any of its Subsidiaries, unless and until and to the extent
such borrowing is repaid, or (ii) contributed, extended, guaranteed or advanced
by the Company or by any of its Subsidiaries (including, without limitation, in
respect of any employee stock ownership or benefit plan)) and (z) $500,000.
Notwithstanding the foregoing, these provisions do not prohibit: (1) the
payment of any dividend or making of any distribution within 60 days after the
date of its declaration if the dividend or distribution would have been
permitted on the date of declaration; (2) the acquisition of Capital Stock of
the Company or warrants, rights or options to acquire Capital Stock of the
Company either (i) solely in exchange for shares of Qualified Capital Stock of
the Company or warrants, rights or options to acquire Qualified Capital Stock of
the Company, or (ii) through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of the Company) of shares
of Qualified Capital Stock of the Company or warrants, rights or options to
acquire Qualified Capital Stock of the Company; (3) the acquisition of any
Indebtedness of the Company that is subordinate or junior in right of payment to
the Notes either (i) solely in exchange for shares of Qualified Capital Stock of
the Company, or (ii) through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of the Company) of (A)
shares of Qualified Capital Stock of the Company or warrants, rights or options
to acquire Qualified Capital Stock of the Company or (B) Refinancing
Indebtedness; (4) the payment of regularly scheduled dividends on shares of the
Company's Preferred Stock outstanding on the Issue Date and (5) loans by the
Company to officers and directors of the Company for the purpose of enabling
such persons to purchase Capital Stock of the Company, provided that the
aggregate amount of such loans at any time outstanding shall not exceed
$500,000; provided, however, that in the case of clauses (2), (3), (4) and (5)
of this paragraph, no Default or Event of Default shall have occurred and be
continuing at the time of such payment or as a result thereof. In determining
the aggregate amount of Restricted Payments made subsequent to the Issue Date,
amounts expended pursuant to clauses (1), (2) and (4) or loaned pursuant to
clause (5) shall, in each case, be included in such calculation.
Not later than the date of making any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate stating that such Restricted
Payment complies with the Indenture and setting forth in reasonable detail the
basis upon which the required calculations were computed, which calculations may
be based upon the Company's latest available internal quarterly financial
statements.
Limitation on Sale of Assets. Neither the Company nor any of its
Subsidiaries will consummate any Asset Sale unless (i) such Asset Sale is for at
least fair market value, (ii) at least 85% of the consideration therefrom
received by the Company or such Subsidiary is in the form of cash or Cash
Equivalents, (iii) if such Asset Sale involves Collateral, (x) such Asset Sale
is not between the Company and any of its Subsidiaries and (y) the Company or
Subsidiary effecting the Asset Sale shall, to the extent required by the lenders
thereunder, immediately repay Indebtedness outstanding under the New Credit
Facility, if any (and permanently reduce the amounts that may be reborrowed
thereunder by an equivalent amount), with the cash consideration received in
respect thereof and shall deposit in the Collateral Account any amounts received
by the Company or such Subsidiary in excess of the amounts so repaid and shall
otherwise be in compliance with the provisions described under "-- Possession,
Use and Release of Collateral -- Release of Collateral," and (iv) the Company or
such Subsidiary shall apply the Net Cash Proceeds of such Asset Sale within 180
days of receipt thereof as follows:
(a) to the extent such Net Cash Proceeds are received from an Asset
Sale not involving the sale, transfer or disposition of Collateral
("Non-Collateral Proceeds"), to repay any Indebtedness secured by the
assets involved in such Asset Sale together with a concomitant permanent
reduction in the amount of
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such Indebtedness (including a permanent reduction in committed amounts
therefor in the case of any revolving credit facility so repaid); and
(b) with respect to any Non-Collateral Proceeds remaining after
application pursuant to the preceding paragraph (a) and any Net Cash
Proceeds received from an Asset Sale involving Collateral ("Collateral
Proceeds") and any Net Awards (as defined, and, together with such
remaining Non-Collateral Proceeds and the Net Cash Proceeds from an Asset
Sale involving Collateral, the "Available Proceeds Amount"), the Company
shall make an offer to purchase (the "Asset Sale Offer") from all Holders
up to a maximum principal amount (expressed as an integral multiple of
$1,000) of Notes equal to the Available Proceeds Amount at a purchase price
equal to 100% of the principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of purchase; provided, that the
Company will not be required to apply pursuant to this paragraph (b) Net
Cash Proceeds received from any Asset Sale or Net Awards if, and only to
the extent that, such Net Cash Proceeds or Net Awards are applied to or
invested in Oil and Gas Related Assets, within 180 days of such Asset Sale
and, if the Net Cash Proceeds or Net Awards so invested included Collateral
Proceeds, the property and assets constituting such Oil and Gas Related
Assets and any non-cash consideration received are made subject to the Lien
of the Security Documents in the manner contemplated in the Indenture. If
at any time any non-cash consideration received by the Company or any
Subsidiary of the Company, as the case may be, in connection with any Asset
Sale is converted into or sold or otherwise disposed of for cash, then such
conversion or disposition shall be deemed to constitute an Asset Sale
hereunder and the Net Cash Proceeds thereof shall be applied in accordance
with this "Limitation on Sale of Assets" covenant. The Company may defer
the Asset Sale Offer until there is an aggregate unutilized Available
Proceeds Amount equal to or in excess of $5,000,000 resulting from one or
more Asset Sales (at which time, the entire unutilized Available Proceeds
Amount, and not just the amount in excess of $5,000,000, shall be applied
as required pursuant to this paragraph). To the extent the Asset Sale Offer
is not fully subscribed to by Holders, the Company may obtain a release of
the unutilized portion of the Available Proceeds Amount from the Lien of
the Security Documents.
All Collateral Proceeds and Net Awards shall constitute Trust Moneys and
shall be delivered by the Company to the Trustee and shall be deposited in the
Collateral Account in accordance with the Indenture. Collateral Proceeds so
deposited may be withdrawn from the Collateral Account pursuant to the Indenture
as summarized in "-- Use of Trust Moneys."
In the event of the transfer of substantially all (but not all) of the
property and assets of the Company and its Subsidiaries as an entirety to a
Person in a transaction permitted under "-- Mergers, Consolidations and Sales of
Assets," the successor corporation shall be deemed to have sold the properties
and assets of the Company and its Subsidiaries not so transferred for purposes
of this covenant, and shall comply with the provisions of this covenant with
respect to such deemed sale as if it were an Asset Sale. In addition, the fair
market value of such properties and assets of the Company or its Subsidiaries
deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this
covenant.
Notice of an Asset Sale Offer will be mailed to the Holders as shown on the
register of Holders not less than 30 days nor more than 60 days before the
payment date for the Asset Sale Offer, with a copy to the Trustee, and shall
comply with the procedures set forth in the Indenture. Upon receiving notice of
the Asset Sale Offer, Holders may elect to tender their Notes in whole or in
part in integral multiples of $1,000 principal amount at maturity in exchange
for cash. To the extent Holders properly tender Notes in an amount exceeding the
Available Proceeds Amount, Notes of tendering Holders will be repurchased on a
pro rata basis (based on amounts tendered). An Asset Sale Offer shall remain
open for a period of 20 Business Days or such longer periods as may be required
by law.
If an offer is made to repurchase the Notes pursuant to an Asset Sale
Offer, the Company will and will cause the Guarantors to comply with all tender
offer rules under state and federal securities laws, including, but not limited
to, Section 14(e) under the Exchange Act and Rule 14e-1 thereunder, to the
extent applicable to such offer.
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Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries. The Indenture provides that neither the Company nor any of its
Subsidiaries will, directly or indirectly, create or otherwise cause or permit
or suffer to exist or become effective any encumbrance or restriction on the
ability of any Subsidiary to (a) pay dividends or make any other distributions
on its Capital Stock; (b) make loans or advances or pay any Indebtedness or
other obligation owed to the Company or to any Subsidiary of the Company; or (c)
transfer any of its property or assets to the Company or to any Subsidiary of
the Company (each such encumbrance or restriction in clause (a), (b), or (c) a
"Payment Restriction"), except for such encumbrances or restrictions existing
under or by reason of: (1) applicable law; (2) the Indenture; (3) customary
non-assignment provisions of any lease governing a leasehold interest of any
Subsidiary of the Company; (4) any instrument governing Acquired Indebtedness
Incurred in accordance with paragraph (b) of the covenant "-- Limitation on
Indebtedness"; provided, that such encumbrance or restriction is not, and will
not be, applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or asset of the Person, becoming a
Subsidiary of the Company; (5) agreements existing on the Issue Date to the
extent and in the manner such agreements are in effect on the Issue Date;
(6) restrictions imposed by Liens granted pursuant to clauses (ix) - (xiv) of
the definition of Permitted Liens solely to the extent such Liens encumber the
transfer or other disposition of the assets subject to such Liens; (7) any
restriction or encumbrance contained in contracts for the sale of assets to be
consummated in accordance with the Indenture solely in respect of the assets to
be sold pursuant to such contract; or (8) any encumbrance or restriction
contained in Refinancing Indebtedness Incurred to Refinance the Indebtedness
issued, assumed or Incurred pursuant to an agreement referred to in clause (2),
(4) or (5) above; provided, that the provisions relating to such encumbrance or
restriction contained in any such Refinancing Indebtedness are no less favorable
to the Company or to the Holders in any material respect in the reasonable and
good faith judgment of the board of directors of the Company than the provisions
relating to such encumbrance or restriction contained in agreements referred to
in such clause (2), (4) or (5).
Limitation on Preferred Stock of Subsidiaries. The Indenture provides that
the Company will not cause or permit any of its Subsidiaries to issue any
Preferred Stock (other than to the Company or to a wholly-owned Subsidiary of
the Company) or permit any Person (other than the Company or a wholly-owned
Subsidiary of the Company) to own or hold any Preferred Stock of any Subsidiary
of the Company or any Lien or security interest therein.
Limitation on Liens. The Indenture provides that the Company will not, and
will not cause or permit any of its Subsidiaries to, directly or indirectly,
create, incur, assume or permit or suffer to exist or remain in effect any Liens
(i) upon any item of Collateral other than the Liens created by the Notes, the
Indenture and the Security Documents and the Liens expressly permitted by the
applicable Security Documents and (ii) upon any other properties or assets of
the Company or of any of its Subsidiaries whether owned on the Issue Date or
acquired after the Issue Date, or on any income or profits therefrom, or assign
or otherwise convey any right to receive income or profits thereon other than,
with respect to this clause (ii), (A) Liens existing on the Issue Date to the
extent and in the manner such Liens are in effect on the Issue Date and (B)
Permitted Liens.
To the extent the Company or any of its Subsidiaries grants any additional
security interest in, or lien upon, any property or assets that at the time of
the granting thereof does not constitute Collateral to secure any obligations of
the Company or its Subsidiaries under the New Credit Facility, the Company or
such Subsidiary shall simultaneously grant a second priority security interest
in such property or assets upon terms which would provide the Trustee, as
collateral agent, substantially similar interest in such property or assets
vis-a-vis the Agent as such parties have interests in the Collateral.
Mergers, Consolidations and Sale of Assets. The Indenture provides that
the Company will not, in a single transaction or series of related transactions,
consolidate or merge with or into any Person, or sell, assign, transfer, lease,
convey or otherwise dispose of (or cause or permit any Subsidiary of the Company
to sell, assign, transfer, lease, convey or otherwise dispose of) all or
substantially all of the Company's assets (determined on a consolidated basis
for the Company and the Company's Subsidiaries) whether as an entirety or
substantially as an entirety to any Person unless: (i) either (1) the Company
shall be the surviving or continuing corporation or (2) the Person (if other
than the Company) formed by such consolidation or into
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which the Company is merged or the Person which acquires by sale, assignment,
transfer, lease, conveyance or other disposition the properties and assets of
the Company and of the Company's Subsidiaries substantially as an entirety (the
"Surviving Entity") (x) shall be a corporation organized and validly existing
under the laws of the United States or any State thereof or the District of
Columbia and (y) shall expressly assume, by supplemental indenture (in form and
substance satisfactory to the Trustee), executed and delivered to the Trustee,
the due and punctual payment of the principal of, and premium, if any, and
interest on all of the Notes and the performance of every covenant of the Notes,
the Indenture and the Registration Rights Agreement on the part of the Company
to be performed or observed; (ii) immediately after giving effect to such
transaction and the assumption contemplated by clause (i)(2)(y) above (including
giving effect to any Indebtedness and Acquired Indebtedness Incurred or
anticipated to be Incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be, (1)
shall have a Consolidated Net Worth equal to or greater than the Consolidated
Net Worth of the Company immediately prior to such transaction and (2) shall be
able to Incur at least $1.00 of additional Indebtedness pursuant to paragraph
(b) of "-- Limitation on Indebtedness"; provided, that in determining the
Consolidated Fixed Charge Coverage Ratio of the Company or such Surviving
Entity, as the case may be, such ratio shall be calculated as if the transaction
(including the Incurrence of any Indebtedness or Acquired Indebtedness) took
place on the first day of the Four Quarter Period; (iii) immediately before and
immediately after giving effect to such transaction and the assumption
contemplated by clause (i)(2)(y) above (including, without limitation, giving
effect to any Indebtedness and Acquired Indebtedness Incurred or anticipated to
be Incurred and any Lien granted in connection with or in respect of the
transaction), no Default and no Event of Default shall have occurred or be
continuing; and (iv) the Company or the Surviving Entity shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment, transfer, lease, conveyance
or other disposition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with the applicable
provisions of the Indenture and that all conditions precedent in the Indenture
relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Subsidiaries of the
Company, the Capital Stock of which constitutes all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
Upon any such consolidation, merger, conveyance, lease or transfer in
accordance with the foregoing, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, lease or
transfer is made will succeed to, and be substituted for, and may exercise every
right and power of, the Company under the Indenture with the same effect as if
such successor had been named as the Company therein, and thereafter (except in
the case of a sale, assignment, transfer, lease, conveyance or other
disposition) the predecessor corporation will be relieved of all further
obligations and covenants under the Indenture and the Notes.
Each Guarantor (other than any Guarantor whose Guarantee is to be released
in accordance with the terms of the Guarantee and the Indenture in connection
with any transaction complying with the provisions of "-- Limitation on Sale of
Assets") will not, and the Company will not cause or permit any Guarantor to,
consolidate with or merge with or into any Person other than the Company or any
other Guarantors unless: (i) the entity formed by or surviving any such
consolidation or merger (if other than the Guarantor), or to which sale, lease,
conveyance or other disposition shall have been made, is a corporation organized
and existing under the laws of the United States, any state thereof or the
District of Columbia; (ii) such entity assumes by supplemental indenture all of
the obligations of the Guarantor on the Guarantee; (iii) immediately after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing; and (iv) immediately after giving effect to such
transaction and the use of any net proceeds therefrom on a pro forma basis, the
Company could satisfy the provisions of clause (ii) of the first paragraph of
this covenant. Any merger or consolidation of a Guarantor with and into the
Company (with the Company being the surviving entity) or another Guarantor that
is a wholly-owned Subsidiary of the Company need only comply with clause (iv) of
the first paragraph of this covenant.
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Limitation on Transactions with Affiliates. The Indenture provides that
neither the Company nor any Subsidiary of the Company will conduct any business
or enter into any transaction or series of transactions with or for the benefit
of any of their Affiliates (each an "Affiliate Transaction"), except in good
faith and on terms that are no less favorable to the Company or such Subsidiary,
as the case may be, than those that could have been obtained in a comparable
transaction on an arm's-length basis from a Person not an Affiliate of the
Company or such Subsidiary. All Affiliate Transactions (and each series of
related Affiliate Transactions which are similar or part of a common plan)
involving aggregate payments or other property with a fair market value in
excess of $250,000 shall be approved by the board of directors of the Company,
such approval to be evidenced by a Board Resolution stating that such board of
directors has determined that such transaction complies with the foregoing
provisions. If the Company or any Subsidiary of the Company enters into an
Affiliate Transaction (or a series of related Affiliate Transactions related to
a common plan) that involves an aggregate fair market value of more than
$3,000,000, the Company or such Subsidiary shall, prior to the consummation
thereof, obtain a favorable opinion as to the fairness of such transaction or
series of related transactions to the Company or the relevant Subsidiary, as the
case may be, from a financial point of view, from an Independent Financial
Advisor and file the same with the Trustee. Notwithstanding the foregoing, the
restrictions set forth in this covenant shall not apply to customary directors'
fees, indemnification and similar arrangements.
Additional Subsidiary Guarantees. If the Company or any of its
Subsidiaries transfers or causes to be transferred, in one transaction or a
series of related transactions, any property to any Subsidiary that is not a
Guarantor, or if the Company or any of its Subsidiaries shall organize, acquire
or otherwise invest in another Subsidiary having total assets with a book value
in excess of $500,000, then such transferee or acquired or other Subsidiary
shall (i) execute and deliver to the Trustee a supplemental indenture in form
reasonably satisfactory to the Trustee pursuant to which such Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Notes and
the Indenture on the terms set forth in the Indenture and (ii) deliver to the
Trustee an Opinion of Counsel that such supplemental indenture has been duly
authorized, executed and delivered by such Subsidiary and constitutes a legal,
valid, binding and enforceable obligation of such Subsidiary. Thereafter, such
Subsidiary shall be a Guarantor for all purposes of the Indenture.
Impairment of Security Interest. Neither the Company nor any of its
Subsidiaries will take or omit to take any action which action or omission would
have the result of adversely affecting or impairing the security interest in
favor of the Trustee, on behalf of itself and the Holders, with respect to the
Collateral, and neither the Company nor any of its Subsidiaries shall grant to
any Person, or suffer any Person (other than the Company) to have (other than to
the Trustee on behalf of the Trustee and the Holders) any interest whatsoever in
the Collateral other than Liens securing the New Credit Facility and Liens
permitted by the Security Documents. Neither the Company nor any of its
Subsidiaries will enter into any agreement or instrument that by its terms
requires the proceeds received from any sale of Collateral to be applied to
repay, redeem, defease or otherwise acquire or retire any Indebtedness of any
Person, other than pursuant to the Indenture, the Securities and the Security
Documents.
Limitation on Conduct of Business. The Indenture provides that the Company
will not, and will not permit any of its Subsidiaries to, engage in the conduct
of any business other than the Oil and Gas Business on a basis consistent with
the conduct of such business as it is conducted on the Issue Date.
Reports to Holders. The Company will file with the Commission all
information, documents and reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act, whether or not the Company
is then subject to such filing requirements. The Company will file with the
Trustee, 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. Regardless of whether the Company is
required to furnish such reports to its stockholders pursuant to the Exchange
Act, the Company will cause its consolidated financial statements, comparable to
that which would have been required to appear in annual or quarterly reports, to
be delivered to the Trustee and the Holders. The Company will also make such
reports available to prospective purchasers of the Notes, securities analysts
and broker-dealers upon their request. In addition, the Indenture requires that
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for so long as any of the Notes remain outstanding the Company will make
available to any prospective purchaser of the Notes or beneficial owner of the
Units, the Notes or the Warrants in connection with any sale thereof the
information required by Rule 144A(d)(4) under the Securities Act, until such
time as the Company has either exchanged the Units, the Notes or the Warrants
for securities identical in all material respects which have been registered
under the Securities Act or until such time as the holders thereof have disposed
of such Units, Notes or Warrants pursuant to an effective registration statement
filed by the Company.
EVENTS OF DEFAULT
The following events are defined in the Indenture as "Events of Default":
(i) the failure to pay interest on any Note for a period of 30 days or
more after such interest becomes due and payable; or
(ii) the failure to pay the principal on any Note, when such principal
becomes due and payable, at maturity, upon redemption, pursuant to an Asset
Sale Offer or a Change of Control Offer or otherwise; or
(iii) (x) the failure of the Company or any Guarantor to comply with
any of the terms or provisions of "-- Certain Covenants -- Mergers,
Consolidations and Sale of Assets" or (y) a default in the observance or
performance of any other covenant or agreement contained in the Indenture
which default continues for a period of 30 days after the Company receives
written notice specifying the default from the Trustee or from Holders of
at least 25% in principal amount of outstanding Notes; or
(iv) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness of the Company or of any Subsidiary of the Company (or the
payment of which is guaranteed by the Company or any Subsidiary of the
Company) which default (a) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness after any applicable
grace period provided in such Indebtedness on the date of such default (a
"payment default") or (b) results in the acceleration of such Indebtedness
prior to its express maturity and, in each case, the principal amount of
any such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a payment default or the maturity
of which has been so accelerated, aggregates $2,500,000; or
(v) one or more judgments in an aggregate amount in excess of
$2,500,000 (which are not covered by third-party insurance as to which a
financially sound insurer has not disclaimed coverage) being rendered
against the Company or any of its Subsidiaries and such judgments remain
undischarged, or unstayed or unsatisfied for a period of 60 days after such
judgment or judgments become final and non-appealable; or
(vi) certain events of bankruptcy, insolvency or reorganization
affecting the Company or any of its Subsidiaries; or
(vii) any of the Guarantees cease to be in full force and effect or
any of the Guarantees are declared to be null and void and unenforceable or
any of the Guarantees are found to be invalid or any of the Guarantors
denies its liability under its Guarantee (other than by reason of release
of a Guarantor in accordance with the terms of the Indenture); or
(viii) any of the Security Documents cease to be in full force and
effect (other than in accordance with their respective terms or the terms
of the Indenture), or any of the Security Documents cease to give the
Trustee the Liens, rights, powers and privileges purported to be created
thereby, or any Security Document is declared null and void, or the Company
denies any of its obligations under any Security Document or any Collateral
becomes subject to any Lien other than the Liens created or permitted by
the Security Documents.
If an Event of Default (other than an Event of Default specified in clause
(vi) above with respect to the Company) occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than
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25% in aggregate principal amount of the then outstanding Notes may declare the
unpaid principal of, premium, if any, and accrued and unpaid interest on, all
the Notes then outstanding to be due and payable, by a notice in writing to the
Company (and to the Trustee, if given by Holders) and upon such declaration such
principal amount, premium, if any, and accrued and unpaid interest will become
immediately due and payable. If an Event of Default with respect to the Company
specified in clause (vi) above occurs, all unpaid principal of, and premium, if
any, and accrued and unpaid interest on, the Notes then outstanding will ipso
facto become due and payable without any declaration or other act on the part of
the Trustee or any Holder.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may rescind an acceleration and its
consequences if all existing Events of Default (other than the nonpayment of
principal of and premium, if any, and interest on the Notes which has become due
solely by virtue of such acceleration) have been cured or waived and if the
rescission would not conflict with any judgment or decree. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
The Holders of a majority in principal amount of the Notes may waive any
existing Default or Event of Default under the Indenture, and its consequences,
except a Default in the payment of the principal of or interest on any Notes or
a Default in respect of any term or provision of the Notes or the Indenture that
cannot be modified or amended without the consent of all Holders.
Holders of the Notes may not enforce the Indenture or the Notes except as
provided in the Indenture and under the TIA. Subject to the provisions of the
Indenture relating to the duties of the Trustee, the Trustee is under no
obligation to exercise any of its rights or powers under the Indenture at the
request, order or direction of any of the Holders, unless such Holders have
offered to the Trustee reasonable indemnity. Subject to all provisions of the
Indenture and applicable law, the Holders of a majority in aggregate principal
amount of the then outstanding Notes have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee.
Under the Indenture, the Company is required to provide an Officers'
Certificate to the Trustee promptly upon any such officer obtaining knowledge of
any Default or Event of Default (provided, that such officers shall provide such
certification at least annually whether or not they know of any Default or Event
of Default) that has occurred and, if applicable, describe such Default or Event
of Default and the status thereof.
DEFEASANCE
The Indenture provides that the Company may, at its option and at any time,
elect to have the obligations of the Company and the Guarantors discharged in
accordance with the provisions set forth below with respect to the Notes then
outstanding. Such defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such outstanding Notes and
the Company and the Guarantors shall be deemed to have satisfied all their
respective other obligations under the Notes, the Guarantees and the Indenture,
except for (i) the rights of holders of such outstanding Notes to receive
payments in respect of the principal of, premium, if any, and interest on such
Notes when such payments are due, (ii) the Company's and the Guarantors'
respective obligations with respect to the Notes concerning issuing temporary
Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the
maintenance of an office or agency for payment and money for security payments
held in trust, (iii) the rights, powers, trusts, duties and immunities of the
Trustee, and (iv) the defeasance provisions of the Indenture. In addition, the
Company may, at its option and at any time, elect to have the respective
obligations of the Company and the Guarantors released with respect to certain
covenants in the Indenture ("covenant defeasance"), and any omission to comply
with such obligations shall not constitute a Default or an Event of Default with
respect to the Notes. In order to exercise either defeasance or covenant
defeasance, (i) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the holders of the Notes, cash in U.S. dollars, U.S.
Government Obligations, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest on such
outstanding Notes on the stated maturity of such principal and each installment
of interest; (ii) in the case of defeasance, the Company shall have delivered to
the Trustee an opinion of counsel stating
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that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the Issue Date, there has been a
change in the applicable federal income tax law, in either case to the effect
that, and based thereon such opinion of counsel shall confirm that, the holders
of the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred; (iii) in the
case of covenant defeasance, the Company shall have delivered to the Trustee an
opinion of counsel to the effect that the holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as a result
of such covenant defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred; (iv) no Default or Event of
Default shall have occurred and be continuing on the date of such deposit; (v)
such defeasance or covenant defeasance shall not result in a breach or violation
of, or constitute a default under, the Indenture or any other material agreement
or instrument to which the Company is a party or by default under, the Indenture
or any other material agreement or instrument to which the Company is a party or
by which it is bound; (vi) in the case of defeasance or covenant defeasance, the
Company shall have delivered to the Trustee an opinion of counsel to the effect
that after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar law affecting creditors' rights generally and that such defeasance or
covenant defeasance will not result in the Trustee or the trust arising from
such deposit constituting an Investment Company as defined in the Investment
Company Act of 1940, as amended; and (vii) the Company shall have delivered to
the Trustee an officers' certificate and an opinion of counsel each stating that
all conditions precedent provided for relating to either the defeasance or the
covenant defeasance, as the case may be, have been complied with.
POSSESSION, USE AND RELEASE OF COLLATERAL
Unless an Event of Default shall have occurred and be continuing, subject
to the terms of the security documents securing the New Credit Facility, the
Company will have the right to remain in possession and retain exclusive control
of the Collateral securing the Notes (other than any cash, securities,
obligations and Cash Equivalents constituting part of the Collateral and
deposited with the Trustee in the Collateral Account and other than as set forth
in the Security Documents), to freely operate the Collateral and to collect,
invest and dispose of any income thereon.
Release of Collateral. Upon compliance by the Company with the conditions
set forth below in respect of any Asset Sale, the Trustee will release the
Released Interests (as defined below) from the Lien of the Security Documents
and reconvey the Released Interests to the Company. The Company will have the
right to obtain a release of items of Collateral (the "Released Interests")
subject to an Asset Sale upon compliance with the condition that the Company
deliver to the Trustee the following:
(a) A notice from the Company requesting the release of Released
Interests, (i) describing the proposed Released Interests, (ii) specifying
the value of such Released Interests on a date within 60 days of such
Company notice (the "Valuation Date"), (iii) stating that the purchase
price to be received is at least equal to the fair market value of the
Released Interests, (iv) stating that the release of such Released
Interests will not interfere with the Trustee's (or the Agent's, in the
event Indebtedness remains outstanding under the New Credit Facility)
ability to realize the value of the remaining Collateral and will not
impair the maintenance and operation of the remaining Collateral, (v)
confirming the sale of, or an agreement to sell, such Released Interests in
a bona fide sale to a person that is not an Affiliate of the Company or, in
the event that such sale is to a person that is an Affiliate, confirming
that such sale is made in compliance with the provisions set forth in
"-- Certain Covenants -- Limitation on Transactions with Affiliates," (vi)
certifying that such Asset Sale complies with the terms and conditions of
the Indenture with respect thereto, and (vii) in the event there is to be a
substitution of property for the Collateral subject to the Asset Sale,
specifying the property intended to be substituted for the Collateral to be
disposed of;
(b) An Officers' Certificate of the Company stating that (i) such
Asset Sale covers only the Released Interests and complies with the terms
and conditions of the Indenture with respect to Asset
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Sales, (ii) all Net Cash Proceeds from the sale of any of the Released
Interests will be applied pursuant to the provisions of the Indenture in
respect of Asset Sales, (iii) there is no Default or Event of Default in
effect or continuing on the date thereof, the Valuation Date or the date of
such Asset Sale, (iv) the release of the Collateral will not result in a
Default or Event of Default under the Indenture, and (v) all conditions
precedent in the Indenture relating to the release in question have been
complied with; and
(c) All documentation required by the Trust Indenture Act, if any,
prior to the release of Collateral by the Trustee and, in the event there
is to be a substitution of property for the Collateral subject to the Asset
Sale, all documentation necessary to effect the substitution of such new
Collateral.
Disposition of Collateral Without Release. Notwithstanding the provisions
of "-- Release of Collateral" above, so long as no Event of Default shall have
occurred and be continuing, the Company may, without any release or consent by
the Trustee, do any number of ordinary course activities in respect of the
Collateral, in limited dollar amounts specified by the TIA, upon satisfaction of
certain conditions. For example, among other things, subject to such dollar
limitations and conditions, the Company would be permitted to sell or otherwise
dispose of any property subject to the Lien of the Indenture and the Security
Documents, which may have become worn out or obsolete; abandon, terminate,
cancel, release or make alterations in or substitutions of any leases or
contracts subject to the Lien of the Indenture or any of the Security Documents;
surrender or modify any franchise, license or permit subject to the Lien of the
Indenture or any of the Security Documents which it may own or under which it
may be operating; alter, repair, replace, change the location or position of and
add to its structures, machinery, systems, equipment, fixtures and
appurtenances; demolish, dismantle, tear down or scrap any Collateral or abandon
any thereof; and grant leases in respect of real property under certain
circumstances.
USE OF TRUST MONEYS
All Trust Moneys (including, without limitation, all Collateral Proceeds)
shall be held by the Trustee as a part of the Collateral securing the Notes and,
so long as no Event of Default shall have occurred and be continuing, may either
(i) be released in accordance with "Possession, Use and Release of Collateral --
Release of Collateral" above if such Trust Moneys represent Collateral Proceeds
in respect of an Asset Sale or (ii) at the direction of the Company be applied
by the Trustee from time to time to the payment of the principal of (at a
purchase price equal to 100% of the principal amount of the relevant Notes) and
interest on any Notes at maturity or upon redemption or to the purchase of Notes
upon tender or in the open market or at private sale or upon any exchange or in
any one or more of such ways, in each case in compliance with the Indenture. The
Company may also withdraw Trust Moneys constituting an award for any Collateral
taken by eminent domain to reimburse the Company for repair or replacement of
such Collateral, subject to certain conditions.
Trust Moneys deposited with the Trustee shall be invested in Cash
Equivalents pursuant to the direction of the Company and, so long as no Event of
Default shall have occurred and be continuing, the Company shall be entitled to
any interest or dividends accrued, earned or paid on such Cash Equivalents.
MODIFICATION OF THE INDENTURE
From time to time, the Company and the Trustee, without the consent of the
Holders, may amend the Indenture for certain specified purposes, including
curing ambiguities, defects or inconsistencies, so long as such change does not,
in the opinion of the Trustee, adversely affect the rights of any of the
Holders. In formulating its opinion on such matters, the Trustee will be
entitled to rely on such evidence as it deems appropriate, including, without
limitation, solely on an Opinion of Counsel. Other modifications and amendments
of the Indenture may be made with the consent of the Holders of a majority in
principal amount of the then outstanding Notes issued under the Indenture,
except that, without the consent of each Holder of the Notes affected thereby,
no amendment may, directly or indirectly: (i) reduce the amount of Notes whose
Holders must consent to an amendment; (ii) reduce the rate of or change the time
for payment of interest, including defaulted interest, on any Notes; (iii)
reduce the principal of or change the fixed maturity of any Notes, or change the
date on which any Notes may be subject to redemption or repurchase, or reduce
the
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redemption or repurchase price therefor; (iv) make any Notes payable in money
other than that stated in the Notes; (v) make any change in provisions of the
Indenture protecting the right of each Holder to receive payment of principal of
and interest on such Note on or after the due date thereof or to bring suit to
enforce such payment, or permitting Holders of a majority in principal amount of
the Notes to waive Defaults or Events of Default; (vi) amend, modify or change
the obligation of the Company to make or consummate a Change of Control Offer, a
Purchase Offer or waive any default in the performance thereof or modify any of
the provisions or definitions with respect to any such offers; (vii) adversely
affect the ranking of the Notes or the Guarantees; (viii) release any Guarantor
from any of its obligations under its Guarantee or the Indenture otherwise than
in accordance with the terms of the Indenture; or (ix) adversely affect the Lien
of the Indenture on the Collateral.
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 but 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.
THE TRUSTEE
The Indenture provides that, except during the continuance of an Event of
Default, the Trustee will perform only such duties as are specifically set forth
in the Indenture. During the existence of an Event of Default, the Trustee will
exercise such rights and powers vested in it by the Indenture, and use the same
degree of care and skill in its exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
The Indenture and the provisions of the TIA contain certain limitations on
the rights of the Trustee, should it become a creditor of the Company, to obtain
payments of claims in certain cases or to realize on certain property received
in respect of any such claim as security or otherwise. Subject to the TIA, the
Trustee will be permitted to engage in other transactions; provided, that if the
Trustee acquires any conflicting interest as described in the TIA, it must
eliminate such conflict or resign "within 90 days of becoming aware of such
conflicting interest as provided in the TIA or apply to the Commission for
permission to continue as Trustee. The Trustee may resign at any time, in which
case a successor trustee is to be appointed pursuant to the terms of the
Indenture."
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indenture. Reference is made to the Indenture for the full definition of all
such terms, as well as any other terms used herein for which no definition is
provided.
"Acquired Indebtedness" of any Person means Indebtedness of another Person
and any of its Subsidiaries existing at the time such other Person becomes a
Subsidiary of such Person or at the time it merges or consolidates with such
Person or any of such Person's Subsidiaries or is assumed by such Person or any
Subsidiary of such Person in connection with the acquisition of assets from such
other Person and in each case not Incurred by such Person or any Subsidiary of
such Person or such other Person in connection with, or in anticipation or
contemplation of, such other Person becoming a Subsidiary of such Person or such
acquisition, merger or consolidation, and which Indebtedness is without recourse
to the Company or any of its Subsidiaries or to any of their respective
properties or assets other than the Person or the assets to which such
Indebtedness related prior to the time such Person becomes a Subsidiary of the
Company or the time of such acquisition, merger or consolidation.
"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 subsidiaries calculated
in accordance with SEC 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
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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 SEC 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 SEC 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, unless in the event that 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 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 (I) the net book value on a date no earlier than the date of the Company's
latest annual or quarterly financial statements or (II) the appraised value, as
estimated by independent appraisers, of other tangible assets of the Company and
its 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, (ii) any gas balancing liabilities of the Company and its
Subsidiaries reflected in the Company's latest audited financial statements,
(iii) to the extent included in (a)(i) above, the discounted future net
revenues, calculated in accordance with SEC guidelines (utilizing the prices
used 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 Subsidiaries with respect to Volumetric Production
Payments on the schedules specified with respect thereto and (iv) the discounted
future net revenues, calculated in accordance with SEC guidelines, attributable
to Dollar-Denominated Production Payments which, based on the estimates of
(a)(i) above, would be necessary to fully satisfy the payment obligations of the
Company and its Subsidiaries with respect to Dollar-Denominated Production
Payments on the schedules specified with respect thereto.
"Affiliate" means, when used with reference to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For the purposes of this definition, "control"
when used with respect to any specified Person means the power to direct or
cause the direction of management or 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 of the foregoing.
"Affiliate Transaction" has the meaning set forth in "-- Certain
Covenants -- Limitation on Transactions with Affiliates."
"Asset Acquisition" means (i) an Investment by the Company or any
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or shall be merged with or into the
Company or any Subsidiary of the Company or (ii) the acquisition by the Company
or any Subsidiary of the Company of assets of any Person comprising a division
or line of business of such Person.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease, assignment or other transfer for value by the Company or by any
of its Subsidiaries to any Person other than to the Company or to a direct or
indirect wholly-owned Subsidiary of the Company of (i) any Capital Stock of any
Subsidiary of the Company or (ii) any other property or assets of the Company or
of any Subsidiary of the Company, other than with respect to this clause (ii)
any disposition of hydrocarbons or other mineral products for value in the
ordinary course of business.
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"Asset Sale Offer" has the meaning set forth in "-- Certain
Covenants -- Limitation on Sale of Assets."
"Available Proceeds Amount" has the meaning set forth in "-- Certain
Covenants -- Limitation on Sale of Assets."
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the board of directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day other than a Saturday, Sunday or any other day
on which banking institutions in the City of New York are required or authorized
by law or other governmental action to be closed.
"Capital Expenditures" means, with respect to any Person, for any period,
on a consolidated basis for such Person and its Subsidiaries, the aggregate of
all expenditures during such period which, as determined in accordance with
generally accepted accounting principles, are required to be included in
property, plant or equipment or a similar fixed asset account.
"Capital Stock" means (i) with respect to any Person that is a corporation,
any and all shares, interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including each class
of Common Stock and Preferred Stock of such Person and (ii) with respect to any
Person that is not a corporation, any and all partnership or other equity
interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the obligations of
such Person to pay rent or other amounts under a lease that are required to be
classified and accounted for as capital lease obligations under GAAP and, for
purposes of this definition, the amount of such obligations at any date shall be
the capitalized amount of such obligations at such date, determined in
accordance with GAAP. The stated maturity of such obligations 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.
"Cash Equivalents" means (i) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation ("S&P") or Moody's
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any commercial bank organized under
the laws of the United States of America or any state thereof or the District of
Columbia or any U.S. branch of a foreign bank having at the date of acquisition
thereof combined capital and surplus of not less than $250,000,000; (v)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (iv) above and (vi) for purposes
of Article Eleven only (in addition to items (i) through (v) above, investments
in money market funds, which funds (A) are not subject to any sales, load or
other similar charge; (B) are rated at least AAAm or AAAm-G by Standard & Poor's
or Aaa by Moody's.
"Change of Control" means the occurrence of one or more of the following
events (whether or not approved by the board of directors of the Company): (i)
the Company consolidates with or merges with or into another Person or any
Person consolidates with, or merges with or into, the Company (in each case,
whether or not in compliance with the terms of the Indenture), in any such event
pursuant to a transaction in which immediately after the consummation thereof
Persons owning a majority of the Voting Stock of the Company immediately prior
to such consummation shall cease to own a majority of the Voting Stock of the
Company or the surviving entity if other than the Company; or (ii) the Company
or any of its Subsidiaries, directly or indirectly, sells, assigns, conveys,
transfers, leases or otherwise disposes of, in one transaction or a
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series of related transactions, all or substantially all of the property or
assets of the Company and its Subsidiaries (determined on a consolidated basis)
to any Person or group of related Persons for purposes of Section 13(d) of the
Exchange Act (a "Group of Persons"); or (iii) the adoption of any plan of
liquidation or dissolution of the Company; or (iv) any Group or Person is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of 40% of the Voting Stock of the Company; or (v)
the first day on which a majority of the members of the Board of Directors of
the Company are not Continuing Directors.
"Collateral" means, collectively, all of the property and assets
(including, without limitation, Trust Moneys) that are from time to time subject
to, or purported to be subject to, the Lien of the Indenture or any of the
Security Documents.
"Collateral Account" means the collateral account to be established by the
Trustee pursuant to the Indenture.
"Commodity Agreement" of any Person means any option or futures contract or
similar agreement or arrangement.
"Common Stock" of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting
or non-voting) of such Person's common stock, whether outstanding on the Issue
Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Consolidated EBITDA" means, with respect to any Person, for any period,
the sum (without duplication) of (i) Consolidated Net Income plus (ii) to the
extent that any of the following shall have been taken into account in
determining Consolidated Net Income, (A) all income taxes of such Person and its
Subsidiaries paid or accrued in accordance with GAAP for such period (other than
income taxes attributable to extraordinary, unusual or nonrecurring gains or
losses or taxes attributable to sales or dispositions of assets outside the
ordinary course of business), Consolidated Interest Expense, amortization
expense and depreciation expense, and (B) other non-cash items (other than
non-cash interest) reducing Consolidated Net Income, other than any non-cash
item which requires the accrual of or a reserve for cash charges for any future
period and other than any non-cash charge constituting an extraordinary item of
loss, less other non-cash items increasing Consolidated Net Income, all as
determined on a consolidated basis for such Person and its Subsidiaries in
conformity with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters (the "Four Quarter Period") ending on or prior to the date of
the transaction or event giving rise to the need to calculate the Consolidated
Fixed Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed
Charges of such Person for the Four Quarter Period. In addition to and without
limitation of the foregoing, for purposes of this definition, "Consolidated
EBITDA" and "Consolidated Fixed Charges" shall be calculated after giving effect
on a pro forma basis for the period of such calculation to (i) the Incurrence or
repayment of any Indebtedness of such Person or any of its Subsidiaries (and the
application of the proceeds thereof) giving rise to the need to make such
calculation and any Incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the Incurrence or repayment of
Indebtedness in the ordinary course of business for working capital purposes
pursuant to working capital facilities, at any time subsequent to the first day
of the Four Quarter Period and on or prior to the Transaction Date, as if such
Incurrence or repayment, as the case may be (and the application of the proceeds
thereof), occurred on the first day of the Four Quarter Period, and (ii) any
Asset Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of such
Person or one of its Subsidiaries (including any Person who becomes a Subsidiary
as a result of any such Asset Acquisition) Incurring, assuming or otherwise
being liable for Acquired Indebtedness at any time subsequent to the first day
of the Four Quarter Period and on or prior to the Transaction Date, as if such
Asset Sale or Asset Acquisition (including the Incurrence, assumption or
liability for any such Indebtedness or Acquired Indebtedness) and also including
any Consolidated EBITDA associated with such Asset Acquisition) occurred on the
first day of the Four Quarter Period; provided, that the Consolidated EBITDA of
any Person acquired shall be included only to the extent includable pursuant to
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the definition of "Consolidated Net Income." If such Person or any of its
Subsidiaries directly or indirectly guarantees Indebtedness of a third person,
the preceding sentence shall give effect to the Incurrence of such guaranteed
Indebtedness as if such Person or any Subsidiary of such Person had directly
Incurred or otherwise assumed such guaranteed Indebtedness. Furthermore, in
calculating "Consolidated Fixed Charges" for purposes of determining the
denominator (but not the numerator) of this "Consolidated Fixed Charge Coverage
Ratio," (1) interest on Indebtedness determined on a fluctuating basis as of the
Transaction Date (including Indebtedness actually Incurred on the Transaction
Date) and which will continue to be so determined thereafter shall be deemed to
have accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; and (2) notwithstanding clause
(1) above, interest on Indebtedness determined on a fluctuating basis, to the
extent such interest is covered by agreements relating to Interest Swap
Obligations, shall be deemed to accrue at the rate per annum resulting after
giving effect to the operation of such agreements.
"Consolidated Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of (i) Consolidated Interest Expense
(including amortization or write-off of deferred financing costs of such Person
and its consolidated Subsidiaries during such period and any premium or penalty
paid in connection with redeeming or retiring Indebtedness of such Person and
its consolidated Subsidiaries prior to the stated maturity thereof pursuant to
the agreements governing such Indebtedness) and (ii) the product of (x) the
amount of all dividend payments on any series of Preferred Stock of such Person
(other than dividends paid in Common Stock) paid, accrued or scheduled to be
paid or accrued during such period times (y) a fraction, the numerator of which
is one and the denominator of which is one minus the then current effective
consolidated Federal, state and local tax rate of such Person, expressed as a
decimal.
"Consolidated Interest Expense" means, with respect to any Person for any
period, the aggregate of the interest expense (without deduction of interest
income) of such Person and its Subsidiaries for such period, on a consolidated
basis, as determined in accordance with GAAP, and including (a) all amortization
of original issue discount; (b) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by such Person
and its Subsidiaries during such period; (c) net cash costs under all Interest
Swap Obligations (including amortization of fees); (d) all capitalized interest;
and (e) the interest portion of any deferred payment obligations for such
period.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP;
provided, that there shall be excluded therefrom (a) after-tax gains from Asset
Sales or abandonments or reserves relating thereto, (b) after-tax items
classified as extraordinary or nonrecurring gains, (c) the net income of any
Person acquired in a "pooling of interests" transaction accrued prior to the
date it becomes a Subsidiary of the referent Person or is merged or consolidated
with the referent Person or any Subsidiary of the referent Person, (d) the net
income (but not loss) of any Subsidiary of the referent Person to the extent
that the declaration of dividends or similar distributions by that Subsidiary of
that income is restricted by a contract, operation of law or otherwise, (e) the
net income of any Person, other than a Subsidiary of the referent Person, except
to the extent of cash dividends or distributions paid to the referent Person or
to a wholly-owned Subsidiary of the referent Person by such Person, (f) any
restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at
any time following the Issue Date, (g) income or loss attributable to
discontinued operations (including, without limitation, operations disposed of
during such period whether or not such operations were classified as
discontinued), and (h) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's assets, any
earnings of the successor corporation prior to such consolidation, merger or
transfer of assets.
"Consolidated Net Worth" of any Person means the consolidated stockholders'
equity of such Person, determined on a consolidated basis in accordance with
GAAP, less (without duplication) amounts attributable to Disqualified Capital
Stock of such Person.
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"Consolidated Non-cash Charges" means, with respect to any Person for any
period, the aggregate depreciation, amortization and other non-cash expenses of
such Person and its Subsidiaries for such period, on a consolidated basis, as
determined in accordance with generally accepted accounting principles.
"Continuing Director" means, as of the date of determination, any member of
the Board of Directors of the Company who (i) was a member of such Board of
Directors on the date of the Indenture or (ii) was nominated for election or
elected to such Board of Directors with the affirmative vote of a majority of
the Continuing Directors who were members of such Board at the time of such
election or nomination.
"Default" means an event or condition the occurrence of which is, or with
the lapse of time or the giving of notice or both would be, an Event of Default.
"Disqualified Capital Stock" means 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, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the sole option of the holder thereof, in whole or in part, on or prior to
the final maturity date of the Notes.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Events of Default" has the meaning set forth in "-- Events of Default."
"Excess Cash Flow" means, with respect to any Person for any period, the
amount by which (A)(1) the sum of (i) Consolidated Net Income and (ii) other
Consolidated Non-cash Charges reducing Consolidated Net Income minus (2)
consolidated non-cash items increasing Consolidated Net Income, exceeds (B) the
sum of (1) Capital Expenditures (except that in the case of Capital Expenditures
Incurred pursuant to an acquisition, only those Capital Expenditures which are
not funded by the Incurrence of any Indebtedness) and (2) payments required to
be made (only to the extent that such payments are actually made) by the Company
and its Subsidiaries pursuant to the scheduled maturities of any Indebtedness of
the Company and its Subsidiaries (other than the repayment of any Indebtedness
of the Company with proceeds of Indebtedness Incurred pursuant to the New Credit
Facility (or any refinancing thereof)).
"Exchange Act" means the Securities Exchange Act of 1934, as amended or any
successor statute or statutes thereto.
"Exchange Notes" means senior debt securities of the Company substantially
identical to the Series A Notes except for the removal of transfer restrictions
and except that such Exchange Notes will not contain certain provisions relating
to an increase in the interest rate which were included in the terms of the
Series A Notes in certain circumstances relating to the timing of the Exchange
Offer.
"Exchange Offer" means the Company's offer to exchange Exchange Notes for
the Series A Notes.
"fair market value" or "fair value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between an informed and willing seller and an informed
and willing and able buyer, neither of whom is under undue pressure or
compulsion to complete the transaction. Fair market value shall be determined by
the board of directors of the Company acting reasonably and in good faith and
shall be evidenced by a Board Resolution delivered to the Trustee; provided,
however, that if the aggregate non-cash consideration to be received by the
Company or any of its Subsidiaries from any Asset Sale could be reasonably
likely to exceed $5,000,000 the fair market value shall be determined by an
Independent Financial Advisor.
"Financial Advisor" means an accounting, appraisal or investment banking
firm of nationally recognized standing that is, in the reasonable and good faith
judgment of the board of directors of the Company, qualified to perform the task
for which such firm has been engaged.
"Four Quarter Period" has the meaning set forth in the definition of
"Consolidated Fixed Charge Coverage Ratio."
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"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Issue Date.
"Guarantor" means (i) each of Warrior, Inc. and HTAC Investments, Inc. and
(ii) each of the Company's Subsidiaries that in the future executes a
supplemental indenture in which such Subsidiary agrees to be bound by the terms
of the Indenture as a Guarantor; provided, that any Person constituting a
Guarantor as described above shall cease to constitute a Guarantor when its
respective Guarantee is released in accordance with the terms of the Indenture.
"Holder" means a Person holding a Note.
"Incur" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of such Indebtedness or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Indebtedness or other obligation on the balance sheet of such Person (and
"Incurrence," "Incurred," "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing); provided, however, that (A) any Indebtedness
assumed in connection with an acquisition of assets and any Indebtedness of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) of the Company or at the time such
Person is merged or consolidated with the Company or any Subsidiary of the
Company shall be deemed to be Incurred at the time of the acquisition of such
assets or by such Subsidiary at the time it becomes, or is merged or
consolidated with, a Subsidiary of the Company or by the Company at the time of
such merger or consolidation, as the case may be, and (B) any amendment,
modification or waiver of any document pursuant to which Indebtedness was
previously Incurred shall be deemed to be an Incurrence of Indebtedness unless
such amendment, modification or waiver does not (i) increase the principal or
premium thereof or interest rate thereon (including by way of original issue
discount) or (ii) change to an earlier date the stated maturity thereof or the
date of any scheduled or required principal payment thereon or the time or
circumstances under which such Indebtedness shall be redeemed.
"Indebtedness" means with respect to any Person, without duplication, (i)
all Obligations of such Person for borrowed money, (ii) all Obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all Capitalized Lease Obligations of such Person, (iv) all Obligations of such
Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and accrued liabilities arising
in the ordinary course of business that are not overdue by 90 days or more or
are being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted), (v) all Obligations for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction, (vi) all Indebtedness of others (including all dividends of other
Persons for the payment of which is) guaranteed, directly or indirectly, by such
Person or that is otherwise its legal liability or which such Person has agreed
to purchase or repurchase or in respect of which such Person has agreed
contingently to supply or advance funds, (vii) net liabilities of such Person
under Interest Swap Obligations and Commodity Agreements, (viii) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
any asset or property (including, without limitation, leasehold interests and
any other tangible or intangible property) of such Person, whether or not such
Indebtedness is assumed by such Person or is not otherwise such Person's legal
liability; provided, that if the Obligations so secured have not been assumed by
such Person or are otherwise not such Person's legal liability, the amount of
such Indebtedness for the purposes of this definition shall be limited to the
lesser of the amount of such Indebtedness secured by such Lien or the fair
market value of the assets or property securing such Lien, and (ix) all
Disqualified Capital Stock issued by such Person with the amount of Indebtedness
represented by such Disqualified Capital Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued dividends if any. 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
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contingency giving rise to the obligation, of any contingent obligations at such
date; provided, that the amount outstanding at any time of any Indebtedness
issued with original issue discount is the full amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP.
"Independent" when used with respect to any specified Person means such a
Person who (a) is in fact independent, (b) does not have any direct financial
interest or any material indirect financial interest in the Company or any of
its Subsidiaries, or in any Affiliate of the Company or any of its Subsidiaries
and (c) is not an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions for the Company or any of its
Subsidiaries. Whenever it is provided in the Indenture that any Independent
Person's opinion or certificate shall be furnished to the Trustee, such Person
shall be appointed by the Company and approved by the Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer has
read this definition and that the signer is Independent within the meaning
thereof.
"Intercreditor Agreement" means the intercreditor agreement dated as of the
Issue Date by and between Internationale Nederlanden (U.S.) Capital Corporation,
as agent under the New Credit Facility, and the Trustee, and acknowledged by the
Company and Warrior, as the same may be amended, supplemented or modified from
time to time in accordance with the terms thereof and of the Indenture.
"Interest Swap Obligations" means the obligations of any Person under any
interest rate protection agreement, interest rate future, interest rate option,
interest rate swap, interest rate cap or other interest rate hedge or
arrangement.
"Investment" by any Person means any direct or indirect (i) loan, advance
or other extension of credit or capital contribution (by means of transfers of
cash or other property (valued at the fair market value thereof as of the date
of transfer) to others or payments for property or services for the account or
use of others, or otherwise); (ii) purchase or acquisition of Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued
by any other Person; (iii) guarantee or assumption of any Indebtedness or any
other obligation of any other Person (except for an assumption of Indebtedness
for which the assuming Person receives consideration at the time of such
assumption in the form of property or assets with a fair market value at least
equal to the principal amount of the Indebtedness assumed); and (iv) all other
items that would be classified as investments (including, without limitation,
purchases of assets outside the ordinary course of business) on a balance sheet
of such Person prepared in accordance with GAAP. The amount of any Investment
shall not be adjusted for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment. If the Company or any
Subsidiary of the Company sells or otherwise disposes of any Common Stock of any
direct or indirect Subsidiary of the Company such that, after giving effect to
any such sale or disposition, the Company no longer owns, directly or
indirectly, greater than 50% of the outstanding Common Stock of such Subsidiary,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Common Stock of such
Subsidiary not sold or disposed of.
"Issue Date" means July 24, 1995, the date of original issuance of the
Series A Notes.
"Lien" means, with respect to any Person, any mortgage, pledge, lien,
encumbrance, easement, restriction, covenant, right-of-way, charge or adverse
claim affecting title or resulting in an encumbrance against real or personal
property of such Person, or a security interest of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option, right of first refusal or other similar agreement to sell,
in each case securing obligations of such Person and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statute or statutes) of any jurisdiction other than to reflect ownership by a
third party of property leased to the referent Person or any of its Subsidiaries
under a lease that is not in the nature of a conditional sale or title retention
agreement).
"Material Change" means an increase or decrease (excluding changes that
result solely from changes in prices) of more than 10% during a fiscal quarter
in the estimated discounted future net cash flows from proved oil and gas
reserves of the Company and its Subsidiaries, calculated in accordance with
clause (a)(i) of the definition of Adjusted Consolidated Net Tangible Assets;
provided, however, that the following will be
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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 existing at the beginning
of such quarter that have been disposed of as provided in the "Limitation of
Sales of Asset Sales" covenant.
"Mortgage" means a mortgage (or deed of trust) dated as of the Issue Date
granted by the Company or any applicable Subsidiary Guarantor for the benefit of
the Trustee and the Holders, as the same may be amended, supplemented or
modified from time to time in accordance with the terms thereof and of the
Indenture.
"Net Award" has the meaning assigned to such term in the Mortgages but
generally means the proceeds award or payment from any condemnation or other
eminent domain proceeding regarding all or any portion of the Collateral less
collection expenses.
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds in
the form of cash or Cash Equivalents (including payments in respect of deferred
payment obligations when received in the form of cash or Cash Equivalents)
received by the Company or any of its Subsidiaries from such Asset Sale net of
(a) reasonable out-of-pocket expenses and fees relating to such Asset Sale
(including, without limitation, brokerage, legal, accounting and investment
banking fees and sales commissions), (b) taxes paid or payable ((1) including,
without limitation, income taxes reasonably estimated to be actually payable as
a result of any disposition of property within two years of the date of
disposition and (2) after taking into account any reduction in tax liability due
to available tax credits or deductions and any tax sharing arrangements), (c)
appropriate amounts to be provided by the Company or any Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Subsidiary,
as the case may be, after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale and (d) in the case of an Asset Sale involving
Collateral, the amount of indebtedness outstanding under the New Credit Facility
actually repaid from the proceeds of such Asset Sale.
"Net Equity Proceeds" means (a) in the case of any sale by the Company of
Qualified Capital Stock of the Company, the aggregate net cash proceeds received
by the Company, after payment of expenses, commissions and the like (including,
without limitation, brokerage, legal, accounting and investment banking fees and
commissions) incurred in connection therewith, and (b) in the case of any
exchange, exercise, conversion or surrender of any outstanding Indebtedness of
the Company or any Subsidiary issued after the Issue Date for or into shares of
Qualified Capital Stock of the Company, the amount of such Indebtedness (or, if
such Indebtedness was issued at an amount less than the stated principal amount
thereof, the accrued amount thereof as determined in accordance with GAAP) as
reflected in the consolidated financial statements of the Company prepared in
accordance with GAAP as of the most recent date next preceding the date of such
exchange, exercise, conversion or surrender (plus any additional amount required
to be paid by the holder of such Indebtedness to the Company or to any
wholly-owned Subsidiary of the Company upon such exchange, exercise, conversion
or surrender and less any and all payments made to the holders of such
Indebtedness, and all other expenses incurred by the Company in connection
therewith), in each case (a) and (b) to the extent consummated after the Issue
Date.
"Net Working Capital" means (i) all current assets of the Company and its
Subsidiaries, minus (ii) all current liabilities of the Company and its
Subsidiaries, except current liabilities included in Indebtedness, in each case
as set forth in financial statements of the Company prepared in accordance with
GAAP.
"New Credit Facility" means the Amended and Restated Credit Agreement,
dated as of July 19, 1995, among the Company, the financial institutions party
thereto in their capacities as lenders thereunder and Internationale Nederlanden
(U.S.) Capital Corporation, as agent, as the same may be amended from time to
time, and any agreement evidencing the refinancing, modification, replacement,
renewal, restatement, refunding, deferral, extension, substitution, supplement,
reissuance or resale thereof.
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"Non-Collateral Proceeds" has the meaning set forth in "-- Certain
Covenants -- Limitation on Sale of Assets."
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officers' Certificate" means a certificate signed by two officers of the
Company.
"Oil and Gas Business" means (i) the acquisition, exploration, development,
operation and disposition of interests in oil, gas and other hydrocarbon
properties located in North America, and (ii) the gathering, marketing,
treating, processing, storage, selling and transporting of any production from
such interests or properties.
"Oil and Gas Related Assets Investment" means any Investment or capital
expenditure (but not including additions to working capital or repayments of any
revolving credit or working capital borrowings) by the Company or any Subsidiary
of the Company which is related to the business of the Company and its
Subsidiaries as it is conducted on the date of the Asset Sale giving rise to the
Net Cash Proceeds to be reinvested.
"Opinion of Counsel" means a written opinion from legal counsel which and
who are acceptable to the Trustee.
"Paying Agent" shall initially be the Trustee until a successor paying
agent for the Notes is selected in accordance with the Indenture.
"payment default" has the meaning set forth in "-- Events of Default."
"Permitted Investments" means (a) Investments in cash and Cash Equivalents;
(b) Investments by the Company or by any Subsidiary of the Company in any Person
that is or will become immediately after such Investment a direct or indirect
Subsidiary of the Company; (c) any Investments in the Company by any Subsidiary
of the Company; provided, that any Indebtedness evidencing such Investment is
unsecured and subordinated, pursuant to a written agreement, to the Company's
obligations in respect of the Notes and the Indenture; and (d) Investments made
by the Company or by its Subsidiaries as a result of an Asset Sale made in
compliance with "-- Certain Covenants -- Limitation on Sale of Assets" above.
"Permitted Liens" means, without duplication, each of the following:
i) pledges or deposits by such Person under worker's compensation
laws, unemployment insurance laws or similar legislation (other than the
Employee Retirement Income Security Act of 1974, as amended), or good faith
deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which such Person is a party, or
deposits to secure public statutory obligations of such Person or deposits
to secure surety or appeal bonds to which such Person is a party, or
deposits as security for contested taxes or import duties or for the
payment of rent;
ii) Liens imposed by law, such as landlords', carriers',
warehousemen's and mechanics' Liens or bankers' Liens incurred in the
ordinary course of business for sums which are not yet due or are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and for which adequate provision has been made;
iii) Liens for taxes not yet subject to penalties for non-payment or
which are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted, if adequate reserve, as may be
required by GAAP, shall have been made therefor;
iv) Liens in favor of issuers of surety bonds or appeal bonds issued
pursuant to the request of and for the account of such Person in the
ordinary course of its business;
v) Liens to support trade letters of credit issued in the ordinary
course of business;
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vi) survey exceptions, encumbrances, easements or reservations of, or
rights of others for, rights of way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions
on the use of real property;
vii) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default;
viii) Liens in favor of the Company;
ix) Liens with respect to Acquired Indebtedness Incurred in accordance
with "-- Certain Covenants -- Limitation on Indebtedness" above; provided,
that (A) such Liens secured such Acquired Indebtedness at the time of and
prior to the Incurrence of such Acquired Indebtedness by the Company or a
Subsidiary of the Company and were not granted in connection with, or in
anticipation of, the Incurrence of such Acquired Indebtedness by the
Company or a Subsidiary of the Company, (B) such Liens do not extend to or
cover any property or assets of the Company or of any of its Subsidiaries
other than the property or assets that secured the Acquired Indebtedness
prior to the time such Indebtedness became Acquired Indebtedness of the
Company or a Subsidiary of the Company and are no more favorable to the
lienholders than those securing the Acquired Indebtedness prior to the
Incurrence of such Acquired Indebtedness by the Company or a Subsidiary of
the Company and (C) the amount of Indebtedness so secured by such Liens,
together with all other Indebtedness of the Company and its Subsidiaries
secured by Liens (other than the Notes), does not exceed, at the time of
and after giving effect to the Incurrence of such Acquired Indebtedness,
40% of the Adjusted Consolidated Net Tangible Assets of the Company;
x) Liens granted by the Company to secure Indebtedness Incurred in
accordance with the Indenture representing all or part of the purchase
price of assets or property acquired after the Issue Date from a Person not
an Affiliate of the Company; provided, that (A) the aggregate amount of
Indebtedness secured by such Lien shall not exceed the fair market value
(or, if less, the cost) of the assets or property so acquired, (B) such
Liens shall not encumber any other assets or property of the Company or of
any Subsidiary of the Company and shall attach to such assets or property
within 60 days of the acquisition of such assets or property, and (C) the
amount of Indebtedness so secured by such Liens, together with all other
Indebtedness of the Company and its Subsidiaries secured by Liens (other
than the Notes), does not exceed, at the time of and after giving effect to
the Incurrence of such Indebtedness, 40% of the Adjusted Consolidated Net
Tangible Assets of the Company;
xi) Liens on the property or assets of a Person that becomes a
Subsidiary of the Company after the Issue Date to the extent that such
Liens are existing at the time such Person became a Subsidiary of the
Company and such Liens were not granted as a result of, in connection with
or in anticipation of such Person becoming a Subsidiary of the Company;
provided, that (A) the Indebtedness (if any) secured thereby is Acquisition
Indebtedness Incurred in accordance with the Indenture and (B) such Liens
do not extend to or cover any property or assets of the Company or of any
of its Subsidiaries other than the property or assets so acquired;
xii) Liens to secure Indebtedness Incurred in accordance with the
Indenture under the New Credit Facility; provided, that the amount of
Indebtedness so secured by such Liens, together with all other Indebtedness
of the Company and its Subsidiaries secured by Liens (other than the
Notes), does not exceed, at the time of and after giving effect to the
Incurrence of such Indebtedness, 40% of the Adjusted Consolidated Net
Tangible Assets of the Company;
xiii) Liens to secure Capitalized Lease Obligations; provided, that
(A) such Liens do not extend to any property or assets which is not leased
property subject to such Capitalized Lease Obligation and (B) the amount of
Indebtedness so secured by such Liens, together with all other Indebtedness
of the Company and its Subsidiaries secured by Liens (other than the
Notes), does not exceed, at the time of and after giving effect to the
incurrence of such Capitalized Lease Obligation, 40% of the Adjusted
Consolidated Net Tangible Assets of the Company;
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xiv) Liens in respect of Refinancing Indebtedness incurred to
Refinance any of the Indebtedness set forth in clauses (ix), (x) and (xiii)
above; provided, that such Liens in respect of such Refinancing
Indebtedness (A) are no less favorable to the Holders and are not more
favorable to the lienholders with respect to such Liens than the Liens in
respect of the Indebtedness being Refinanced and (B) do not extend to or
cover any properties or assets of the Company or of any of the Company's
Subsidiaries, other than the property or assets that secured the
Indebtedness being Refinanced;
xv) Liens on, or related to, properties or assets to secure all or a
part of the costs incurred in the ordinary course of the Oil and Gas
Business for the exploration, drilling, development or operation thereof;
xvi) Liens on pipeline or pipeline facilities which arise out of
operation of law;
xvii) Liens arising under operating agreements, joint venture
agreements, partnership agreements, oil and gas leases, farm-out
agreements, division orders, contracts for the sale, transportation or
exchange of oil and natural gas, unitization and pooling declarations and
agreements, areas of mutual interest agreements and other agreements which
are customary in the Oil and Gas Business; and
xviii) Liens reserved in oil and gas mineral leases for bonus or
rental payments and for compliance with the terms of such leases.
"Person" means an individual, partnership, corporation, unincorporated
organization, trust or joint venture, or a governmental agency or political
subdivision thereof.
"Preferred Stock" of any Person means any Capital Stock of such Person that
has preferential rights to any other Capital Stock of such Person with respect
to dividends or redemptions or upon liquidation.
"Qualified Capital Stock" means any Capital Stock that is not Disqualified
Capital Stock.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the Company of
Indebtedness Incurred in accordance with "Certain Covenants -- Limitation on
Indebtedness" (other than pursuant to clause (iv), (v), (vi) or (viii) of the
definition of Permitted Indebtedness), in each case that does not (1) result in
an increase in the aggregate principal amount of Indebtedness of such Person as
of the date of such proposed Refinancing (plus the amount of any premium
required to be paid under the terms of the instrument governing such
Indebtedness and plus the amount of reasonable expenses incurred by the Company
in connection with such Refinancing) or (2) create Indebtedness with (A) a
Weighted Average Life to Maturity that is less than the Weighted Average Life to
Maturity of the Indebtedness being Refinanced or (B) a final maturity earlier
than the final maturity of the Indebtedness being Refinanced; provided, that (x)
if such Indebtedness being Refinanced is Indebtedness of the Company, then such
Refinancing Indebtedness shall be Indebtedness solely of the Company, and (y) if
such Indebtedness being Refinanced is subordinate or junior to the Notes, then
such Refinancing Indebtedness shall be subordinate to the Notes at least to the
same extent and in the same manner as the Indebtedness being Refinanced.
"Registrar" shall initially mean the Trustee until a successor registrar
for the Notes is selected in accordance with the Indenture.
"Security Documents" means, collectively, the Mortgages and the
Intercreditor Agreement and all security agreements, mortgages, deeds of trust,
collateral assignments or other instruments evidencing or creating any security
interests in favor of the Trustee in all or any portion of the Collateral, in
each case as amended, supplemented or modified from time to time in accordance
with their terms and the terms of the Indenture.
"Subsidiary," with respect to any Person, means (i) any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of
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which at least a majority of the voting interest under ordinary circumstances is
at the time, directly or indirectly, owned by such Person.
"Trust Moneys" means all cash or Cash Equivalents received by the Trustee
(a) upon the release of Collateral from the Lien of the Indenture and/or the
Security Documents, including investment earnings thereon; or (b) pursuant to
the provisions of any Mortgage; or (c) as proceeds of any other sale or other
disposition of all or any part of the Collateral by or on behalf of the Trustee
or any collection, recovery, receipt, appropriation or other realization of or
from all or any part of the Collateral pursuant to the Indenture or any part of
the Collateral pursuant to the Indenture or any of the Security Documents or
otherwise; or (d) for application under the Indenture as provided for in the
Indenture or the Security Documents, or whose disposition is not elsewhere
otherwise specifically provided for in the Indenture or in the Security
Documents; provided, however, that Trust Moneys shall not include any property
deposited with the Trustee pursuant to any Change of Control Offer or redemption
or defeasance of any Notes.
"Volumetric Production Payments" means production payment obligations
recorded as deferred revenue in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Voting Stock" means, with respect to any Person, securities of any class
or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (a) the then outstanding
aggregate principal amount of such Indebtedness into (b) the total of the
product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"wholly-owned Subsidiary" of any Person means any Subsidiary of such Person
of which all the outstanding voting securities which normally have the right to
vote in the election of directors are owned by such Person or any wholly-owned
Subsidiary of such Person.
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DESCRIPTION OF NEW CREDIT FACILITY
The Company used part of the proceeds from the sale of the Units to repay
all of the outstanding indebtedness under the Prior Credit Facility and entered
into the New Credit Facility with ING Capital, pursuant to the terms of which
the Company initially may borrow up to $10 million on a revolving credit basis.
The New Credit Facility will convert to a term loan on January 31, 1996, with a
set amortization schedule and will have a final maturity date of December 31,
1998. The following is a summary of certain material terms of the New Credit
Facility.
Availability. Availability under the New Credit Facility will be limited
to a "borrowing base" amount. The borrowing base will be determined
semi-annually by the lender, in its sole discretion and may be established at an
amount up to $15 million. Initially, the borrowing base is set at $10 million
and ING Capital will have no obligation to increase the borrowing base above
this amount. Availability under the New Credit Facility will terminate on
January 31, 1996 at which time amounts outstanding under the New Credit Facility
will convert to a term loan.
Interest. Amounts advanced under the New Credit Facility will bear
interest at an adjusted eurodollar rate plus 2.50%.
Covenants. The New Credit Facility contains restrictive covenants which
impose limitations on the Company and its subsidiaries with respect to, among
other things: (i) the maintenance of current assets equal to at least 100% of
current liabilities, (ii) the maintenance of a minimum tangible net worth, (iii)
the incurrence of indebtedness (with exceptions for the Notes and the New Credit
Facility and certain other limited exceptions), (iv) dividends and similar
payments (except dividends on Series A, B and C Preferred Stock of up to
$530,000), (v) the creation of additional liens on, or the sale of, the
Company's oil and gas properties and other assets, (vi) the Company's ability to
enter into hedging transactions, (vii) mergers or consolidations, (viii)
investments outside the ordinary course of business and (ix) transactions with
affiliates.
Defaults. The New Credit Facility contains customary default provisions,
including, but not limited to, failure to pay principal, interest or other
monetary obligations owed to the lender within two days after the due date;
default in the performance of any covenant after the expiration of any
applicable grace period; bankruptcy or insolvency; any material adverse change
in the Company's individual or consolidated financial condition or business or
operations; default on other indebtedness of the Company in excess of $250,000;
and material misrepresentation by the Company. It will also be a default under
the New Credit Facility if any Change of Control occurs (the definition of a
Change of Control is similar to the definition in the Indenture). See
"Description of Notes -- Certain Definitions."
Security. All indebtedness of the Company under the New Credit Facility is
guaranteed by the Company's two subsidiaries and will be secured by a first lien
upon substantially all of the Company's oil and gas properties as well as by a
pledge of all of the capital stock of the Company's subsidiaries and the
accounts receivable, inventory, general intangibles, machinery and equipment and
other assets of the Company. All assets not subject to a lien in favor of the
lender are subject to a negative pledge, with certain exceptions.
Indemnification. The Company is required to reimburse the lender for all
out-of-pocket expenses, including fees for attorneys, engineers and other
consultants, incurred by the lender in connection with the New Credit Facility
and has agreed to indemnify the lender against certain liabilities arising out
of or related to the New Credit Facility and the transactions contemplated
thereby.
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CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain federal income tax consequences
associated with the Exchange Offer, and also with respect to the acquisition,
ownership, and disposition of the Notes by holders who acquired the Units in the
Unit Offering at original issue for cash. The following summary does not discuss
all of the aspects of federal income taxation that may be relevant to a
prospective holder of Notes in light of his or her particular circumstances, or
to certain types of holders which are subject to special treatment under the
federal income tax laws (including persons who hold Notes as part of a
conversion, straddle or hedge, dealers in securities, insurance companies, tax
exempt organizations, financial institutions, broker-dealers and S
corporations). Further, the summary pertains only to holders that are citizens
or residents of the United States, corporations, partnerships or other entities
created in or under the laws of the United States or any political subdivision
thereof, or estates or trusts the income of which is subject to United States
federal income taxation regardless of its source. In addition, this summary does
not describe any tax consequences under state, local, or foreign tax laws.
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 decisions now in effect, all of which are subject to
change at any time by legislative, judicial or administrative action. Any such
changes may be applied retroactively in a manner that could adversely affect
holders of Notes. The Company has not sought and will not seek any rulings or
opinions from the IRS or counsel with respect to the matters discussed below.
There can be no assurance that the IRS will not take positions concerning the
tax consequences of the valuation, purchase, ownership or disposition of the
Notes which are different from those discussed herein.
PROSPECTIVE PURCHASERS OF NOTES SHOULD CONSULT THEIR OWN TAX ADVISORS WITH
RESPECT TO THE U.S. FEDERAL INCOME TAX CONSEQUENCES THAT MAY BE SPECIFIC TO THEM
OF ACQUIRING, OWNING AND DISPOSING OF NOTES, AS WELL AS THE APPLICATION OF
STATE, LOCAL, FOREIGN AND OTHER TAX LAWS.
EXCHANGE OFFER
Under federal income tax law, a holder of Series A Notes will not recognize
gain or loss upon an exchange of Series A Notes for Exchange Notes pursuant to
the Exchange Offer. A holder's basis and holding period for the Exchange Notes
received pursuant to the Exchange Offer will be the same as such holder's basis
and holding period for the Series A Notes exchanged therefor.
Each exchanging holder should consult with his individual tax advisor as to
any foreign, state and local tax consequences of the Exchange Offer as well as
to the effect of his particular facts and circumstances on the matters discussed
herein.
ALLOCATION OF ISSUE PRICE BETWEEN NOTES AND WARRANTS
Each Unit sold in the Unit Offering was comprised of one $1,000 principal
amount Series A Note and 22 Warrants. Consequently, the issue price of a Unit
must be allocated between the Series A Note and the Warrants. The "issue price"
of a Series A Note will equal the first price at which a substantial number of
Units are sold for money (excluding for such purposes sales to bond houses,
brokers, or similar persons or organizations acting in the capacity of
underwriters, placement agents or wholesalers) less the amount allocable to the
Warrants (based on the relative fair market values of the Series A Notes and
Warrants). Based on the advice of its financial advisor and based on the fact
that a substantial portion of the Units were initially sold for $994.58 each,
the Company estimates that each Unit was comprised of a Series A Note having an
issue price of $969.06 and 22 Warrants with an ascribed value of $25.52. The
issue price of the Exchange Notes received pursuant to the Exchange Offer will
equal the issue price of the Series A Notes. No assurance can be given, however,
that the IRS will not challenge the Company's determination of the issue price
of the Notes.
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The Company's determination of the issue price of the Notes is binding on a
holder, unless such holder discloses the use of a different determination on the
applicable form attached to such holder's timely filed federal income tax return
for the year of acquisition of such Notes. Holders intending to use an issue
price allocation different from that used by the Company should consult their
tax advisors as to the consequences to them of their particular determination of
the issue price of each Note.
AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTES
The amount of original issue discount with respect to each Note will equal
the excess of the "stated redemption price at maturity" of such Note over its
issue price. The "stated redemption price at maturity" of each Note will be
equal to the principal amount of such Note payable at maturity. The amount of
original issue discount with respect to a debt instrument is considered to be
zero if such discount is less than one-fourth of one percent of its stated
redemption price at maturity (as defined above) multiplied by the number of
complete years from the issue date to the maturity date of the debt instrument.
The Notes were, and thus the Exchange Notes will be, issued with original issue
discount in an amount greater than such de minimis amount.
TAXATION OF ORIGINAL ISSUE DISCOUNT ON NOTES
As discussed above, the Notes were, and thus the Exchange Notes will be,
issued with original issue discount. Each holder of a Note will be required to
include in gross income (as interest) an amount equal to the sum of the "daily
portions" of the original issue discount on the Notes for each day such holder
holds a Note, regardless of the holder's regular method of accounting. The daily
portions of original issue discount required to be included in a holder's gross
income will be determined on a constant yield basis by allocating to each day
during the taxable year in which the holder holds the Notes a pro rata portion
of the original issue discount thereon which is allocable to the "accrual
period."
The amount of the original issue discount allocable to each accrual period
will be the product of the "adjusted issue price" of the Notes at the beginning
of such accrual period multiplied by the "yield to maturity" of the Notes, less
the amount of any qualified stated interest allocable to the accrual period.
Appropriate adjustments will be made in computing the amount of original issue
discount attributable to the initial accrual period. The adjusted issue price of
the Notes at the beginning of the first accrual period is the issue price.
Thereafter the adjusted issue price of a Note would be the issue price of the
Note plus the aggregate amount of original issue discount that accrued in all
prior accrual periods. The yield to maturity of a Note would be the discount
rate that, when used to compute the present value (on a semi-annual compounded
basis) of all principal and interest payments to be made under a Note, produces
a present value equal to the issue price of the Note. "Accrual periods" for a
holder of a Note may be of any length and may vary in length over the term of
the Note, provided that each accrual period is no longer than six months and
each scheduled payment of principal or interest occurs either on the first day
of an accrual period or on the final day of an accrual period.
Because any portion of the Notes may be purchased or redeemed by the
Company at indeterminate times prior to the Maturity Date pursuant to any of (i)
an Excess Cash Flow Offer, (ii) an Equity Proceeds Offer, or (iii) an Equity
Proceeds Redemption, the timing of the principal payments on the Notes is not
known as of the Issue Date. A prospective purchaser of Notes should be aware
that there is uncertainty in determining the yield and maturity of the Notes for
purposes of allocating original issue discount to each period. Pursuant to
Treasury Regulation section 1.1272-1(c), where a debt instrument provides for
alternative payment schedules comprised of payments the timing and amounts of
which are known as of the issue date, the yield and maturity of the debt
instrument are computed based on the payment schedule most likely to occur based
on all the facts and circumstances as of the issue date. Although this Treasury
Regulation apparently does not technically apply to the Notes (because the
timing of any potential redemption is not known as of the Issue Date), it is the
closest authority and, in the absence of controlling authority, the Company will
determine the yield and maturity of the Notes in the same manner as under this
Treasury Regulation. Based on all the facts and circumstances as of the Issue
Date, the Company believes that the stated payment schedule of the Notes
(payment of the principal amount at maturity rather than pursuant to earlier
redemption) is the most likely to
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occur. Thus, the Company will determine the yield and maturity of the Notes
assuming that no portion of the Notes will be purchased or redeemed by the
Company prior to the Maturity Date. If, however, the IRS were to successfully
contend that, as of the Issue Date, the stated payment schedule of the Notes was
not the most likely to occur, the yield and maturity of the Notes would likely
differ from that determined by the Company, with the result that the amount of
original issue discount allocable to earlier accrual periods would likely be
increased. The Company's determination of yield and maturity will be binding on
any Holder of a Note that does not explicitly disclose its use of a different
determination of yield and maturity on a statement attached to the Holder's
timely filed federal income tax return for the year of acquisition of such Note.
Each prospective purchaser of a Note is advised to consult with its own tax
advisor concerning the determination of the yield and maturity of the Notes for
purposes of allocating original issue discount to each accrual period.
HIGH-YIELD DISCOUNT OBLIGATIONS
The Notes will constitute high yield discount obligations ("HYDOs") if (i)
the yield-to-maturity of such Notes is equal to or greater than the sum of the
relevant applicable federal rate (the "AFR") plus five percentage points and
(ii) such Notes have "significant original issue discount." The relevant AFR for
debt instruments issued in July 1995 is 6.18%. If the Notes constitute HYDOs,
the Company will not be entitled to deduct any original issue discount that
accrues with respect to the Notes until such interest is actually paid. In
addition, if the yield of the Notes is more than six percentage points above the
relevant AFR, then (a) a portion of such interest corresponding to the yield in
excess of six percentage points above the AFR will not be deductible by the
Company at any time and (b) a corporate holder may be entitled to treat the
portion of the interest that is not deductible by the Company as a dividend,
which may then qualify for the dividends received deduction provided for by the
Code. In such event, corporate holders of Notes should consult with their tax
advisors as to the applicability of the dividends received deduction.
TAXATION OF QUALIFIED STATED INTEREST ON NOTES
Absent some special circumstance that may be particular to a holder (or as
discussed below), qualified stated interest paid on a Note will be taxable to a
holder as ordinary interest income at the time it accrues or is received, in
accordance with the holder's regular method of accounting for federal income tax
purposes. Holders of the Notes may elect to accrue all interest that accrues on
the Notes into income by using the constant yield method discussed above.
The Company will annually furnish to certain record holders of the Notes
and to the IRS information with respect to any original issue discount accruing
during the calendar year (as well as qualified stated interest paid during that
year) as may be required under applicable regulations.
SALE OR OTHER TAXABLE DISPOSITION OF NOTES
The sale, redemption, or other taxable disposition of a Note will result in
the recognition of gain or loss to the holder in an amount equal to the
difference between (a) the amount of cash and fair market value of property
received (except to the extent attributable to the payment of accrued qualified
stated interest) in exchange therefor and (b) the holder's adjusted tax basis in
such Note.
A holder's initial tax basis in a Note purchased by such holder will be
equal to the portion of the issue price of the Units allocable to the Notes, as
discussed above. The holder's initial tax basis in a Note will be increased by
the amount of any original issue discount included in gross income with respect
to such Note to the date of disposition.
Any gain or loss on the sale, redemption, or other taxable disposition of a
Note will be capital gain or loss, assuming a purchaser of the Note holds such
security as a "capital asset" (generally property held for investment) within
the meaning of Section 1221 of the Code. Any capital gain or loss will be
long-term capital gain or loss if the Note is held for more than one year and
otherwise will be short-term capital gain or loss. Payments on such disposition
for accrued qualified stated interest not previously included in income will be
treated as ordinary interest income.
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If the Company fails to register the Notes or if the Exchange Offer is not
consummated within the required period of time (and in certain other
circumstances), then additional interest may become payable with respect to the
Notes. See "Summary -- Exchange Offer; Registration Rights; Additional
Interest." This rate increase should not result in a deemed taxable exchange of
the Notes.
PURCHASERS OF NOTES AT OTHER THAN ORIGINAL ISSUANCE PRICE OR DATE
The foregoing does not discuss special rules which may affect the treatment
of purchasers that acquire Notes either (a) other than at the time of original
issuance or (b) at the time of original issuance other than at the issue price,
including those provisions of the Code relating to the treatment of "market
discount," "acquisition premium" and "amortizable bond premium." Any such
purchaser should consult his tax advisor as to the consequences to him of the
acquisition, ownership, and disposition of Notes.
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 number ("TIN") to
the payor, (b) the IRS notifies the payor that the TIN furnished by the payee is
incorrect, (c) the payee has failed to report properly 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 with
respect to a holder of Notes, 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 of such holder. A "reportable
payment" includes, among other things, amounts paid in respect of interest or
original issue discount and amounts paid through brokers in retirement of
securities. Any amounts withheld from a 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 rules.
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BOOK-ENTRY; DELIVERY AND FORM
The Certificates representing the Exchange Notes will be issued in fully
registered form, without coupons and will be deposited with, or on behalf of,
the Depositary, and registered in the name of Cede & Co., as the Depositary's
nominee in the form of a global Exchange Note certificate (the "Global
Certificate") or will remain in the custody of the Trustee.
Except as set forth below, the Global Certificate may be transferred, in
whole and not in part, only by the Depositary to its nominee to such Depositary
or another nominee of the Depositary or by the Depositary or its nominee to a
successor of the Depositary or a nominee of such successor.
The Company understands that the Depositary is a limited-purpose trust
company which was created to hold securities for its participating organizations
(the "Participants") and to facilitate the clearance and settlement of
transactions in such securities between Participants through electronic
book-entry changes in accounts of its Participants. Participants include
securities brokers and dealers (including the Initial Purchasers), banks, trust
companies, clearing corporations and certain other organizations. Access to the
Depositary'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, either directly or indirectly ("indirect
participants"). Persons who are not participants may beneficially own securities
held by the Depositary through Participants or indirect participants.
Pursuant to procedures established by the Depositary (i) upon deposit of
the Global Certificate, the Depositary will credit the accounts of Participants
with portions of the principal amount of the Global Certificate and (ii)
ownership of the Exchange Notes will be shown on, and the transfer of ownership
thereof will be effected only through, records maintained by the Depositary
(with respect to the interest on the Depositary's participants), the
Depositary's Participants and the Depositary's indirect participants.
The laws of some jurisdictions require that certain persons take physical
delivery in definitive form of securities that they own. Consequently, the
ability to transfer interests in the Global Certificate will be limited to such
extent.
So long as the nominee of the Depositary is the registered owner of the
Global Certificate, such nominee will be considered the sole owner or holder of
the Exchange Notes for all purposes under the Indenture. Except as provided
below, the owners of interests in the Global Certificate will not be entitled to
have Exchange Notes registered in their names, will not receive or be entitled
to receive physical delivery of Exchange Notes in definitive form and will not
be considered the owners or holders thereof under the Indenture. As a result,
the ability of a person having a beneficial interest in Exchange Notes
represented by the Global Certificate to pledge such interest to persons or
entities that do not participate in the Depositary's system or to otherwise take
actions in respect to such interest may be affected by the lack of a physical
certificate evidencing such interest.
Neither the Company, the Trustee nor any paying agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of interests in the Global Certificate or for
maintaining, supervising or reviewing any records relating to such interests.
Principal and interest payments on the Global Certificate registered in the
name of the Depositary's nominee will be made by the Company or through a paying
agent to the Depositary's nominee as the registered owner of the Global
Certificate. Under the terms of the Indenture, the Company and the Trustee will
treat the persons in whose names the Exchange Notes are registered as the owners
of such Exchange Notes for the purpose of receiving payments of principal and
interest on such Exchange Notes and for all other purposes whatsoever.
Therefore, neither the Company, the Trustee nor any paying agent has any direct
responsibility or liability for the payment of principal or interest on the
Exchange Notes to owners of interests in the Global Certificate. The Depositary
has advised the Company and the Trustee that its present practice is, upon
receipt of any payment of principal or interest, to credit immediately the
account of the Participants with payments in amounts proportionate to their
respective holdings in principal amount of interests in the Global Certificate
as shown on the records of the Depositary. Payments by Participants and indirect
participants to owners of interests in the Global Certificate will be governed
by standing instructions and customary practices,
99
<PAGE> 104
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 or indirect participants.
If the Depositary is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the Company within 90
calendar days, the Company will issue Exchange Notes in certificated form in
exchange for the Global Certificate. In addition, the Company may at any time
determine not to have the Exchange Notes represented by a Global Certificate,
and, in such event, will issue Exchange Notes in certificated form in exchange
for the Global Certificate. In either instance, an owner of an interest in the
Global Certificate would be entitled to physical delivery of such Exchange Notes
in certificated form. Exchange Notes so issued in certificated form will be
issued in denominations of $1,000 and integral multiples thereof and will be
issued in registered form only.
Neither the Company nor the Trustee shall be liable for any delay by the
Depositary or its nominee in identifying the beneficial owners or the related
Exchange Notes, and each such person may conclusively rely on, and shall be
protected in relying on, instructions from the Depositary or its nominee for all
purposes (including with respect to the registration and delivery, and the
respective principal amounts, of the Exchange Notes to be issued).
LEGAL MATTERS
The legality of the securities offered hereby will be passed on for the
Company by Vinson & Elkins L.L.P., Houston, Texas.
EXPERTS
The financial statements as of December 31, 1994 and for the three years
then ended, included in this Prospectus, to the extent and for the periods
indicated in their reports, have been audited by Arthur Andersen LLP,
independent public accountants, and are included herein in reliance upon the
authority of said firm as experts in giving said reports.
The consolidated financial statement herein and schedules of Consolidated
HCO Energy Ltd. (whose name was subsequently changed to "HCO Energy Ltd.") as of
December 31, 1992, and for the years then ended included herein and elsewhere in
this Prospectus have been included herein in reliance upon the report of KPMG
Peat Marwick Thorne, independent chartered accountants, included herein.
ENGINEERS
Information set forth in this Prospectus relating to the Company's
estimated proved oil and gas reserves at December 31, 1994, the related
calculations of future net production revenues and the net present value thereof
have been derived from an independent petroleum engineering report prepared by
Ryder Scott Company and Huddleston & Co., independent petroleum engineers.
100
<PAGE> 105
GLOSSARY OF OIL AND GAS TERMS
The terms defined in this section are used throughout this Prospectus.
Bbl. One stock tank barrel, or 42 U.S. gallons liquid volume, used herein
in reference to crude oil or other liquid hydrocarbons.
Bcf. Billion cubic feet.
BOE. Barrels of oil equivalent, determined using the ratio of six Mcf of
natural gas (including natural gas liquids) to one Bbl of crude oil or
condensate.
Btu. British thermal unit, which is the heat required to raise the
temperature of a one-pound mass of water from 58.5 to 59.5 degrees Fahrenheit.
Development location. A location on which a development well can be
drilled.
Development well. A well drilled within the proved area of an oil or gas
reservoir to the depth of a stratigraphic horizon known to be productive in an
attempt to recover proved undeveloped reserves.
Dry hole. A well found to be incapable of producing either oil or gas in
sufficient quantities to justify completion as an oil or gas well.
Estimated future net revenues. Revenues from production of oil and gas,
net of all production-related taxes, lease operating expenses and capital costs.
Exploratory well. A well drilled to find and produce oil or gas in an
unproved area, to find a new reservoir in a field previously found to be
productive of oil or gas in another reservoir, or to extend a known reservoir.
Gross acres. An acre in which a working interest is owned.
Gross well. A well in which a working interest is owned.
MBbl. One thousand barrels of crude oil or other liquid hydrocarbons.
MBOE. One thousand barrels of oil equivalent.
MBtu. One thousand Btus.
Mcf. One thousand cubic feet.
MMBbl. One million barrels of crude oil or other liquid hydrocarbons.
MMBOE. One million barrels of oil equivalent.
MMBtu. One million Btus.
MMcf. One million cubic feet.
Net acres or net wells. The sum of the fractional working interests owned
in gross acres or gross wells.
NGLs. Natural gas liquids such as ethane, propane, iso-butane, normal
butane and natural gasoline that have been extracted from natural gas.
Overriding royalty interest. An interest in an oil and gas property
entitling the owner to a share of oil and gas production free of costs of
production.
PDP. Proved developed producing.
Present value of estimated future net revenues or pretax present value at
constant prices of estimated future net revenues. Estimated future net revenues
discounted by a factor of ten percent per annum, before income taxes and with no
price or cost escalation or de-escalation, in accordance with guidelines
promulgated by the Securities and Exchange Commission.
Productive well. A well that is producing oil or gas or that is capable of
production.
101
<PAGE> 106
Proved developed reserves. Reserves that can be expected to be recovered
through existing wells with existing equipment and operating methods.
Proved reserves. The estimated quantities of crude oil, natural gas and
natural gas liquids 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 undeveloped location. A site on which a development well can be
drilled consistent with local spacing rules for the purpose of recovering proved
reserves.
Proved undeveloped reserves. Reserves that are expected to be recovered
from new wells on undrilled acreage, or from existing wells where a relatively
major expenditure is required for recompletion.
Recompletion. The completion for production of an existing wellbore in
another formation from that in which the well has previously been completed.
Reserve life is calculated by dividing year-end reserves by total
production in that year.
Reserve replacement costs. Total costs incurred for exploration and
development, divided by reserves added from all sources, including reserve
discoveries, extensions and improved recovery additions, net revisions to
reserve estimates and purchases of reserves-in-place. This calculation is often
used as a measure of the efficiency of an oil and gas company's exploration and
development expenditures.
Reserve replacement ratio is calculated by dividing the net total reserves
added in a specific year through drilling, acquisitions, and revisions by total
production in that year.
Undeveloped acreage. Lease acreage on which wells have not been drilled or
completed to a point that would permit the production of commercial quantities
of oil and gas regardless of whether such acreage contains proved reserves.
Working interest. The operating interest which gives the owner the right
to drill, produce and conduct operating activities on the property and a share
of production.
102
<PAGE> 107
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Consolidated Financial Statements:
Reports of Independent Public Accountants........................................... F-2
Consolidated Balance Sheets at December 31, 1994 and 1993........................... F-4
Consolidated Statements of Operations for the years ended December 31, 1994, 1993
and 1992......................................................................... F-5
Consolidated Statements of Stockholders' Equity for the years ended
December 31, 1994, 1993 and 1992................................................. F-6
Consolidated Statements of Cash Flows for the years ended
December 31, 1994, 1993 and 1992................................................. F-7
Notes to Consolidated Financial Statements.......................................... F-10
Interim Consolidated Financial Statements:
Consolidated Balance Sheets at June 30, 1995 (unaudited)............................ F-34
Consolidated Statement of Operations for the three months ended June 30, 1995
and 1994 (unaudited)............................................................. F-35
Consolidated Statements of Operations for the six months ended June 30, 1995
and 1994 (unaudited)............................................................. F-36
Consolidated Statement of Stockholders' Equity for the six months ended June 30,
1995............................................................................. F-37
Consolidated Statements of Cash Flows for the six months ended June 30, 1995
and 1994 (unaudited)............................................................. F-38
Notes to Interim Consolidated Financial Statements (unaudited)...................... F-40
</TABLE>
Separate financial statements of Warrior, Inc. and HTAC Investments, Inc.
as Guarantors of the Notes have not been included herein because (a) such
Guarantors are jointly and severally liable for full and unconditional
guarantees of the Notes and (b) the aggregate net assets, earnings and equity of
such Guarantors and the Company are equal to the net assets, earnings and equity
of the Company on a consolidated basis. The Company presently has no
subsidiaries which are not guaranteeing the Notes.
F-1
<PAGE> 108
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Stockholders and Board of Directors of HarCor Energy, Inc.:
We have audited the accompanying consolidated balance sheets of HarCor
Energy, Inc. (a Delaware corporation) and subsidiaries as of December 31, 1994
and 1993, and the related consolidated statements of operations, stockholders'
equity and cash flows for each of the three years in the period ended December
31, 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 did not audit the
consolidated financial statements of Consolidated HCO Energy Ltd. and
subsidiary, which statements reflect revenues of 50 percent of the consolidated
totals for the year ended December 31, 1992. Those statements were audited by
other auditors whose report has been furnished to us and our opinion, insofar as
it relates to the amounts included for those entities, is based solely on the
report of the other auditors.
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 and the report of other auditors provide a reasonable
basis for our opinion.
In our opinion, based on our audits and the report of other auditors, the
consolidated financial statements referred to above present fairly, in all
material respects, the financial position of HarCor Energy, Inc. and
subsidiaries as of December 31, 1994 and 1993, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1994 in conformity with generally accepted accounting principles.
ARTHUR ANDERSEN LLP
Houston, Texas
March 30, 1995
F-2
<PAGE> 109
[LOGO]
<TABLE>
<S> <C> <C>
KPMG PEAT MARWICK THORNE 1200, 205 - 5th Avenue S.W. Telephone (403) 691-8000
CHARTERED ACCOUNTANTS Calgary, Alberta T2P 4B9 Telefax (403) 691-8008
</TABLE>
INDEPENDENT CHARTERED ACCOUNTANTS' REPORT
To the Directors of Consolidated HCO Energy Ltd.
We have audited the consolidated statements of operations and deficit and
changes in financial position of Consolidated HCO Energy Ltd. for the year ended
December 31, 1992 (not presented separately herein). 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 audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform an audit to obtain reasonable
assurance 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.
In our opinion, these consolidated financial statements present fairly, in all
material respects, the results of operations and the changes in financial
position of Consolidated HCO Energy Ltd. for the year ended December 31, 1992 in
accordance with Canadian generally accepted accounting principles.
KPMG PEAT MARWICK THORNE
Chartered Accountants
Calgary, Canada
February 19, 1993
F-3
<PAGE> 110
HARCOR ENERGY, INC.
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1994 AND 1993
ASSETS
<TABLE>
<CAPTION>
1994 1993
------------ ------------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash investments..................................... $ 899,198 $ 2,161,512
Accounts receivable........................................... 3,707,433 1,186,707
Prepaids and other............................................ 307,241 160,239
------------ ------------
Total current assets.......................................... 4,913,872 3,508,458
------------ ------------
PROPERTY, PLANT AND EQUIPMENT, at cost, successful efforts
method:
Unproved oil and gas properties............................... 7,414,113 401,411
Proved oil and gas properties:
Leasehold costs............................................ 52,158,281 19,936,983
Lease and well equipment................................... 12,900,913 5,061,868
Intangible development costs............................... 4,745,579 1,094,394
Furniture and equipment....................................... 231,354 207,354
------------ ------------
77,450,240 26,702,010
Less -- accumulated depletion, depreciation and
amortization............................................... (16,674,540) (13,064,271)
------------ ------------
Net property, plant and equipment............................. 60,775,700 13,637,739
------------ ------------
OTHER ASSETS.................................................... 2,883,277 791,267
------------ ------------
$ 68,572,849 $ 17,937,464
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current portion of long-term bank debt........................ $ 2,511,200 $ --
Current portion of production note payable.................... -- 474,289
Subordinated Bridge Loan...................................... 5,000,000 --
Accounts payable and accrued liabilities...................... 5,345,967 1,483,666
------------ ------------
Total current liabilities.................................. 12,857,167 1,957,955
------------ ------------
LONG-TERM BANK DEBT, net of current portion..................... 31,888,800 4,963,125
------------ ------------
PRODUCTION NOTE, net of current portion......................... -- 3,103,584
------------ ------------
OTHER LIABILITIES............................................... 71,055 376,905
------------ ------------
COMMITMENTS AND CONTINGENCIES (Note 10)
REDEEMABLE SERIES D PREFERRED STOCK............................. 8,402,430 --
------------ ------------
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value -- 1,500,000 shares
authorized; 67,500 and 37,500 shares outstanding at
December 31, 1994 and 1993, respectively................... 675 375
Common stock, $.10 par value -- 25,000,000 and 15,000,000
shares authorized, respectively; 7,192,837 and 5,736,884
shares outstanding at December 31, 1994 and 1993,
respectively............................................... 719,284 573,689
Additional paid-in capital.................................... 29,827,989 21,217,720
Accumulated deficit........................................... (15,194,551) (14,255,889)
------------ ------------
Total stockholders' equity................................. 15,353,397 7,535,895
------------ ------------
$ 68,572,849 $ 17,937,464
============ ============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE> 111
HARCOR ENERGY, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 1994, 1993 AND 1992
<TABLE>
<CAPTION>
1994 1993 1992
----------- ----------- -----------
<S> <C> <C> <C>
REVENUES:
Oil and gas revenues.............................. $10,981,651 $ 6,507,468 $ 6,162,156
Gas plant revenues................................ 1,978,317 -- --
Interest income................................... 16,269 20,593 62,102
Other............................................. 236,814 197,022 441,764
----------- ----------- -----------
13,213,051 6,725,083 6,666,022
----------- ----------- -----------
COSTS AND EXPENSES:
Production costs.................................. 3,609,831 2,248,877 2,674,673
Gas plant costs................................... 1,707,551 -- --
Dry hole, impairment and abandonment costs........ 74,797 41,165 402,365
Engineering and geological costs.................. 254,418 187,862 536,381
Depletion, depreciation and amortization.......... 3,897,133 2,641,079 2,142,091
General and administrative expenses............... 2,014,232 2,104,857 2,085,479
Interest expense.................................. 2,268,558 542,098 1,047,570
Loss on STLP dissolution.......................... 203,000 -- --
----------- ----------- -----------
14,029,520 7,765,938 8,888,559
----------- ----------- -----------
Loss before minority interests.................... (816,469) (1,040,855) (2,222,537)
Loss attributable to minority interests........... -- -- (808,303)
----------- ----------- -----------
Loss before provision for income taxes and
extraordinary item............................. (816,469) (1,040,855) (1,414,234)
Provision for income taxes........................ -- -- --
----------- ----------- -----------
Loss before extraordinary item.................... (816,469) (1,040,855) (1,414,234)
EXTRAORDINARY ITEM:
Loss on early extinguishment of debt.............. 122,193 -- --
----------- ----------- -----------
Net loss.......................................... (938,662) (1,040,855) (1,414,234)
----------- ----------- -----------
Dividends on preferred stock........................ (795,065) (246,468) (32,000)
Accretion on redeemable preferred stock............. (156,152) -- --
----------- ----------- -----------
NET LOSS APPLICABLE TO COMMON STOCKHOLDERS.......... $(1,889,879) $(1,287,323) $(1,446,234)
=========== =========== ===========
NET LOSS PER COMMON SHARE BEFORE EXTRAORDINARY
ITEM.............................................. $(.27) $(.23) $(.41)
EXTRAORDINARY ITEM.................................. (.02) -- --
----------- ----------- -----------
NET LOSS PER COMMON SHARE AFTER EXTRAORDINARY
ITEM.............................................. $(.29) $(.23) $(.41)
=========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE> 112
HARCOR ENERGY, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1994, 1993 AND 1992
<TABLE>
<CAPTION>
COMMON STOCK PREFERRED STOCK ADDITIONAL
-------------------- ---------------- PAID-IN ACCUMULATED
SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT
--------- -------- ------- ------ ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1991............... 2,973,210 $297,321 8,000 $ 80 $13,301,821 $(11,800,800)
Issuance of common stock pursuant to
private placement sale................. 932,308 93,231 -- -- 2,125,818 --
Issuance of common stock pursuant to
dissolution of HTAC Partners........... 1,474,359 147,436 -- -- 1,879,808 --
Issuance of common stock pursuant to
exercise of stock options and letter
agreement.............................. 20,000 2,000 -- -- 44,781 --
Preferred stock dividends................ -- -- -- -- (32,000) --
Net loss................................. -- -- -- -- -- (1,414,234)
--------- -------- ------- ------ ----------- ------------
BALANCE, DECEMBER 31, 1992............... 5,399,877 539,988 8,000 80 17,320,228 (13,215,034)
Issuance of 8% Series B Convertible
Preferred Stock........................ -- -- 30,000 300 2,999,700 --
Issuance of 8% Series C Convertible
Preferred Stock........................ -- -- 10,000 100 930,926 --
Conversion of Convertible Preferred
Stock.................................. 235,157 23,516 (10,500) (105) (23,411) --
Issuance of common stock pursuant to
exercise of stock options.............. 101,850 10,185 -- -- 236,745 --
Preferred stock dividends................ -- -- -- -- (246,468) --
Net loss................................. -- -- -- -- -- (1,040,855)
--------- -------- ------- ------ ----------- ------------
BALANCE, DECEMBER 31, 1993............... 5,736,884 573,689 37,500 375 21,217,720 (14,255,889)
Issuances in connection with Bakersfield
Property acquisition:
4% Series E Convertible Preferred
Stock................................ -- -- 30,000 300 2,982,443 --
Common stock........................... 1,363,907 136,391 -- -- 2,965,148 --
Warrants............................... -- -- -- -- 3,200,842 --
Issuances of common stock pursuant to
Restricted Stock grant and exercise of
stock options.......................... 75,375 7,537 -- -- 266,776 --
Issuances of common stock and warrants
pursuant to preferred stock
dividends.............................. 16,671 1,667 -- -- 146,277 --
Preferred stock dividends................ -- -- -- -- (795,065) --
Accretion on 9% Redeemable Series D
Preferred Stock........................ -- -- -- -- (156,152) --
Net loss................................. -- -- -- -- -- (938,662)
--------- -------- ------- ------ ----------- ------------
BALANCE, DECEMBER 31, 1994............... 7,192,837 $719,284 67,500 $675 $29,827,989 $(15,194,551)
========= ========= ======== ======= ============ =============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-6
<PAGE> 113
HARCOR ENERGY, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1994, 1993 AND 1992
<TABLE>
<CAPTION>
1994 1993 1992
----------- ----------- -----------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Loss.......................................... $ (938,662) $(1,040,855) $(1,414,234)
Adjustments to reconcile net loss to net cash
provided by operating activities:
Loss attributable to minority interests........ -- -- (808,303)
Depletion, depreciation and amortization....... 3,897,133 2,641,079 2,142,091
Amortization of deferred charges............... 254,372 67,177 79,051
Dry hole, impairment and abandonment costs..... 74,797 41,165 346,222
Engineering and geological costs............... 254,418 187,862 536,381
(Gain) loss on sale of assets.................. (230,993) (166,021) 56,144
Equity in net loss of Canadian venture......... -- -- 75,590
Loss on STLP dissolution....................... 203,000 -- --
Loss on early extinguishment of debt........... 122,193 -- --
----------- ----------- -----------
3,636,258 1,730,407 1,012,942
Changes in current assets and liabilities:
Decrease (increase) in receivables............. (2,520,726) 11,987 (291,985)
Decrease (increase) in prepaids and other
current assets............................... (147,002) 68,786 (222,382)
Increase in accounts payable and accrued
liabilities.................................. 1,772,930 560,074 517,048
----------- ----------- -----------
Net cash provided by operating activities......... 2,741,460 2,371,254 1,015,623
----------- ----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Engineering and geological costs.................. (254,418) (187,862) (536,381)
Proceeds from sale of assets...................... 455,754 363,332 459,722
Additions to oil and gas properties............... (45,607,532) (4,283,066) (4,236,443)
Dry hole and abandonment costs.................... (74,797) (41,165) (100,044)
Sale of Canadian securities....................... -- 1,287,356 --
Other............................................. -- 58,683 (551,407)
----------- ----------- -----------
Net cash used in investing activities............. (45,480,993) (2,802,722) (4,964,553)
----------- ----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of debt.................... 34,436,875 2,603,528 2,636,775
Proceeds from issuance of preferred stock......... -- 931,026 --
Proceeds from issuance of Redeemable Preferred
Stock.......................................... 10,000,000 -- --
Proceeds from issuance of common stock............ 3,053,101 246,930 2,965,940
Proceeds from issuance of common stock of HCO..... -- -- 4,035,254
Repayment of debt................................. (3,577,873) (1,949,189) (3,232,578)
Dividends on Preferred Stock...................... (356,413) (170,055) (32,000)
Increase in deferred financing costs and other
assets......................................... (1,772,621) (47,655) (103,999)
Other............................................. (305,850) 49,888 --
----------- ----------- -----------
Net cash provided by financing activities......... 41,477,219 1,664,473 6,269,392
Effect of exchange rate changes on cash............. -- -- (10,346)
Effect of deconsolidation of HCO on cash............ -- -- (1,770,447)
----------- ----------- -----------
Net increase (decrease) in cash..................... (1,262,314) 1,233,005 539,669
Cash and cash investments at beginning of period.... 2,161,512 928,507 388,838
----------- ----------- -----------
Cash and cash investments at end of period.......... $ 899,198 $ 2,161,512 $ 928,507
=========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-7
<PAGE> 114
HARCOR ENERGY, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1994, 1993 AND 1992
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
(ALL DOLLAR AMOUNTS HAVE BEEN ROUNDED TO THE NEAREST THOUSAND)
At December 31, 1993, the Company's cash as reported included $1,616,000
attributable to the proportionate consolidation of its 37.875% ownership of
South Texas Limited Partnership ("STLP") at that date.
The Company made cash interest payments of $2,030,000, $453,000 and
$732,000 in 1994, 1993 and 1992, respectively.
SUPPLEMENTAL INFORMATION REGARDING NON-CASH INVESTING AND FINANCING
ACTIVITIES -- YEAR ENDED DECEMBER 31, 1994
In connection with the dissolution of the South Texas Limited Partnership
and related property conveyance, the Company wrote off $203,000 of its cost
basis of the partnership, and expensed $122,000 reflecting a write-off of
deferred financing costs resulting from the early extinguishment of debt in
1994. The charges for the dissolution and debt extinguishment are non-cash items
and are not reflected in investing or financing activities. (See Note 3.)
In connection with the Company's acquisition of certain oil and gas assets,
the Company issued to the sellers, as a portion of the consideration, 30,000
shares of its Series E Preferred Stock with a face value of $3,000,000, 25,000
shares of unregistered common stock with a value of approximately $81,000 and a
warrant to purchase 1,000,000 shares of the Company's common stock at $5.00 per
share to which the Company ascribed a value of $850,000. The acquisition value
of the assets acquired and corresponding additions to equity resulting from
these transactions are not reflected in investing or financing activities. (See
Note 5.)
In connection with the amendment of the Company's credit agreement to
partially finance the above acquisition, the Company issued to the financial
institutions involved warrants to purchase 250,000 shares of the Company's
common stock at $4.75 per share to which the Company ascribed a value of
$230,000. The deferred financing cost and addition to equity resulting from this
transaction are not reflected in financing activities. (See Note 8.)
During 1994, the Company issued an aggregate of 60,375 restricted shares of
common stock to officers which was valued as deferred of $241,501 compensation
and was not reflected in financing activities.
During 1994, the Company paid "in-kind" dividends on its Series D
Redeemable Preferred Stock consisting of $455,000 in newly-issued Series D
Preferred Stock and detachable warrants to purchase shares of common stock which
were valued at $88,000. The Company also paid dividends on its Convertible
Series E Preferred Stock consisting of $60,000 in newly-issued unregistered
shares of the Company's common stock. These dividend payments and issuance of
common stock and warrants are not reflected in financing activities. (See
Note 12.)
At December 31, 1994, the Company had accrued acquisition and developmental
drilling costs aggregating $1,823,000 and accrued prepaid and deferred financing
costs aggregating $342,000. The additions to property, plant and equipment and
financing costs resulting from these and the above described transactions are
not reflected in investing and financing activities. The transactions described
herein resulted in total non-cash net additions to property and equipment
totaling $5,737,000 for the year ended December 31, 1994.
SUPPLEMENTAL INFORMATION REGARDING NON-CASH INVESTING AND FINANCING
ACTIVITIES -- YEAR ENDED DECEMBER 31, 1993
In March 1993, the Company acquired oil and gas royalty and net profit
interests in exchange for 30,000 shares of the Company's 8% Series B Convertible
Preferred Stock at $100.00 per share for an aggregate of
F-8
<PAGE> 115
HARCOR ENERGY, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS -- (CONTINUED)
FOR THE YEARS ENDED DECEMBER 31, 1994, 1993 AND 1992
$3,000,000. The acquisition value of the assets acquired and corresponding
addition to equity are not reflected in investing or financing activities. (See
Note 4.)
In connection with the Company's May 1993 acquisition of an additional
12.625% interest in STLP for $1,095,000 (including transaction costs and net of
cash acquired), the Company acquired a net working capital balance of $28,000
and $787,000 of STLP's production note payable to Midland Bank (including
current maturities). The working capital and production note portions of this
transaction are not reflected in investing or financing activities. (See
Note 3.)
The above acquisitions resulted in non-cash additions to property, plant
and equipment totaling $4,030,000 for 1993.
The Company declared dividends totaling $76,000 on its Series A, B and C
Convertible Preferred Stock, which were accrued and unpaid and not reflected in
financing activities at December 31, 1993, but paid and reflected in 1994
financing activities.
SUPPLEMENTAL INFORMATION REGARDING NON-CASH INVESTING AND FINANCING
ACTIVITIES -- YEAR ENDED DECEMBER 31, 1992
In November 1992, the Company issued 1,474,359 shares of its common stock
pursuant to the restructure of HTAC Partners ("HTACP") for a combination of cash
(reflected in the 1992 Consolidated Statements of Cash Flows) and the assets of
HTACP, which consisted principally of 1,950,000 shares of Consolidated HCO
Energy Ltd. with a market value of $1,287,000 at the time of the restructure.
The issuance of stock and corresponding value ascribed to HTACP's assets in this
transaction are not reflected in the 1992 Consolidated Statement of Cash Flows.
(See Note 12.)
In October 1992, the Company acquired net working capital of $179,000 in
connection with its 25.25% participation in the formation of South Texas Limited
Partnership. (See Note 3.)
The accompanying notes are an integral part of these consolidated financial
statements.
F-9
<PAGE> 116
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1994
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of consolidation
The accompanying consolidated financial statements for the year ended
December 31, 1992 include the accounts and results of operations of HarCor
Energy, Inc. ("HarCor") and its wholly-owned subsidiaries, Warrior, Inc.
("Warrior"), HTAC, Inc. ("HTAC") and HTAC Investments, Inc. ("HTACI"); HTACP, a
limited partnership for which HTACI was the managing general partner; the
results of operations of its then majority-controlled affiliate, Consolidated
HCO Energy Ltd. ("HCO"); and HarCor's 25.25% general partner share of assets,
liabilities, revenues and costs and expenses of STLP for the three months ended
December 31, 1992. HTACP was dissolved and HCO was deconsolidated effective
December 1992. (See Note 2.)
The accompanying consolidated financial statements for the year ended
December 31, 1993 include the accounts and results of HarCor, Warrior and HTACI;
HarCor's 25.25% share of assets, liabilities, revenues and costs and expenses of
STLP for the period of January 1993 through April 1993; HarCor's 37.875% share
of STLP's accounts and results of operations for the period May 1993 through
December 1993; and HarCor's share of assets, revenues and costs and expenses of
oil and gas interests acquired from the TCW Commingled Debt and Royalty Fund I
("Royalty Interests") for the period of March 1993 through December 1993.
The accompanying consolidated financial statements for the year ended
December 31, 1994 include the accounts and results of HarCor, Warrior and HTACI;
HarCor's share of the assets, liabilities, revenues and costs and expenses of
STLP or, after STLP's dissolution in March 1994, HarCor's direct working
interests in the STLP properties ("South Texas Properties"); HarCor's share of
the Royalty Interests; and HarCor's interest in certain oil and gas assets
located in Kern County, California acquired on June 30, 1994 (the "Bakersfield
Properties"); (collectively, the "Company" or "HarCor" unless the context
specifies otherwise).
All significant intercompany accounts and transactions have been eliminated
in consolidation.
Business and organization
HarCor, a Delaware corporation, was incorporated in 1976 and is engaged in
the business of acquiring interests in and developing onshore oil and gas
properties in the United States.
Cash flows
For purposes of reporting cash flows, cash and cash investments include
cash on hand and temporary short-term cash investments, with original maturities
of three months or less.
Property, plant and equipment
The Company utilizes the successful efforts method of accounting for its
oil and gas properties. Under this method, exploratory costs, except costs of
drilling exploratory wells, are charged to expense when incurred; exploratory
well costs (including leasehold costs) are initially capitalized, but are
charged to expense if the well is determined to be unsuccessful. Upon discovery
of reserves on an oil and gas property in commercially producible quantities,
all costs of developing that property, including costs of drilling unsuccessful
development wells, are capitalized. Capitalized leasehold acquisition costs are
depleted on a unit-of-production method, based on proved oil and gas reserves.
Exploration, development and equipment costs are depreciated or amortized on a
unit-of-production method, based on proved developed oil and gas reserves. The
carrying amount of all unproved properties is evaluated periodically and reduced
if such properties have been impaired. Developed oil and gas properties are
assessed periodically to determine if the carrying amount exceeds the total
present value of future net revenues, valued at current or contract prices, less
future costs of production and development.
F-10
<PAGE> 117
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The gas plant is stated at cost and is depreciated utilizing the
straight-line method over 15 years.
Furniture and equipment are stated at cost and are depreciated utilizing
the straight-line method over three to five years.
Accounts payable and accrued liabilities
Accounts payable and accrued liabilities at December 31, 1994 and 1993
comprised the following:
<TABLE>
<CAPTION>
1994 1993
---------- ----------
<S> <C> <C>
Trade accounts payable...................................... $5,071,124 $1,154,566
Accrued taxes............................................... 70,516 132,545
Other accrued liabilities................................... 204,327 196,555
---------- ----------
$5,345,967 $1,483,666
========== ==========
</TABLE>
Minority interests
Minority interests reflected in the year ended December 31, 1992 Statements
of Operations represent that portion of losses pertaining to HCO's equity and
HTACP's capital not owned by HarCor and HTACI in that period.
Net loss per common share
Net loss per common share was calculated by dividing the net loss, after
consideration of preferred stock dividends paid or accrued and related
accretion, by the weighted average number of common shares outstanding during
each period. Outstanding stock options, warrants and convertible preferred
shares were not included in the calculations, since their effect was
antidilutive in all periods. The weighted average number of outstanding common
shares utilized in the calculation was 6,447,000 shares in 1994, 5,492,000
shares in 1993 and 3,512,000 shares in 1992.
Currency conversion
All amounts with respect to HCO and its operations for 1992 have been
remeasured to U.S. dollars using year-end and average exchange rates
approximating $.80 Canadian ("CDN") per $1.00 U.S. with any resulting gains or
losses being immaterial.
Income taxes
In February 1992, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards ("FAS") No. 109. FAS 109 requires an asset and
liability approach to determining deferred income taxes. FAS 109 requires
recognition of deferred taxes at enacted tax rates for temporary differences
between book and tax basis of assets and liabilities. FAS 109 also eliminates
the concept of recognizing extraordinary gains when net operating loss
carryforwards are recognized. Such benefits, along with temporary differences,
will now be recognized in the year such losses are incurred; or differences are
generated, subject to realization. FAS 109 also requires that deferred tax
liabilities and assets be adjusted in the period of enactment for the effect of
an enacted change in tax laws or rates.
The Company adopted FAS 109 cumulatively effective January 1, 1993. The new
standard had no impact on the Company's financial position or results of
operations for 1993. (See Note 11.)
Prior year reclassifications
Certain prior year amounts have been reclassified to conform with the
current year presentation.
F-11
<PAGE> 118
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(2) CONSOLIDATION AND SUBSEQUENT DIVESTITURE OF HCO
The Company had acquired 56% of the outstanding common stock of HCO during
1992 and, accordingly, consolidated HCO's results of operations for that year.
The following table presents the condensed consolidating statements of
operations of HarCor and HCO for the year ended December 31, 1992. All financial
information presented for HCO has been adjusted to conform with U.S. generally
accepted accounting principles, including adjustments required to account for
HCO's oil and gas properties using the successful efforts method (all amounts
are in thousands):
HARCOR ENERGY, INC.
CONDENSED CONSOLIDATING STATEMENTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1992
<TABLE>
<CAPTION>
HARCOR HCO CONSOLIDATED
------- ------ ------------
<S> <C> <C> <C>
REVENUES............................................. $ 3,312 $3,354 $ 6,666
------- ------ --------
COSTS AND EXPENSES:
Production and exploration......................... 1,671 1,942 3,613
Depletion, depreciation and amortization........... 944 1,198 2,142
General and administrative......................... 1,570 515 2,085
Interest expense................................... 465 583 1,048
------- ------ --------
4,650 4,238 8,888
------- ------ --------
Loss before minority interests..................... (1,338) (884) (2,222)
Minority interests................................. -- (808) (808)
------- ------ --------
$(1,338) $ (76) $ (1,414)
======= ====== ========
</TABLE>
In December 1992, HCO completed the private placement sale of new common
and preferred shares of its stock which resulted in a reduction to 21% of
HarCor's ownership of HCO. Accordingly, the balance sheet accounts of HCO were
not consolidated with those of HarCor at December 31, 1992.
Subsequent to the deconsolidation of HCO, HTACP (a limited partnership
between the Company and a trust company acting on behalf of certain pension
funds) was dissolved effective December 31, 1992. HTACP's assets, which
consisted of 1,950,000 common shares of HCO and a warrant to purchase additional
shares of HCO at a price of $1.85 CDN per share, were transferred to the
Company. These shares, along with another 597,000 common shares of HCO owned by
the Company, were sold in January 1993 for net consideration of $1,287,000
(which equalled the Company's remaining recorded cost of these common shares at
the time of sale). The Company sold the warrants in November 1994 for
approximately $318,000 and recognized a gain of $200,000 on the transaction.
(3) SOUTH TEXAS LIMITED PARTNERSHIP
In October 1992, the Company formed South Texas Limited Partnership, a
Texas limited partnership, with Washington Energy Exploration, Inc. ("WEEX") and
JMI Services Nevada, Inc. ("JMI"). Upon formation of STLP, the Company and WEEX
were general partners of STLP with 25.25% and 49.5% interests in the
partnership, respectively, and JMI was a limited partner with a 25.25% interest
in the partnership. The Company's capital contributions to STLP totaled
$1,544,000 at formation. The Company also acquired a 25.25% proportionate right
to certain exploratory acreage outside of the partnership.
F-12
<PAGE> 119
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Upon its formation, STLP acquired certain oil and gas mineral interests
located in South Texas for approximately $13,400,000. STLP partially financed
the acquisition with borrowings from Midland Bank plc, New York Branch ("Midland
Bank"). The Company's interest in STLP's purchased oil and gas reserves was
valued at $3,500,000 at the acquisition date.
In May 1993, the Company purchased one-half of JMI's interest in STLP
(representing 12.625% of STLP) for $1,095,000 in cash and assumed an incremental
12.625% of STLP's production note with Midland Bank ($787,000 at the acquisition
date). Assets acquired within the additional STLP interest were oil and gas
interests valued at $1,854,000 and net working capital of approximately $28,000.
In January 1994, JMI sold its remaining 12.625% interest in STLP to WEEX.
The Company and WEEX subsequently agreed to dissolve and terminate STLP
effective March 1, 1994. Pursuant to the terms of the dissolution agreement
between the Company and WEEX, all of the assets and liabilities of STLP were
distributed to the Company and WEEX in proportion to their respective interests
in STLP. The principal asset distributed to the Company was its proportionate
37.875% working interest in the South Texas Properties. The Company also paid
WEEX $264,000 (representing a prior non-consent position on a working capital
cash-call by STLP) and conveyed to WEEX six percent of the Company's share in
the South Texas Properties until such time as WEEX receives a sum equal to a
negotiated non-consent penalty. Concurrent with STLP's dissolution, the Company
and WEEX each repaid their respective proportionate share of all amounts owed
pursuant to STLP's production note outstanding. The Company's proportionate
amount of such note was $3,103,584 (see Note 6). The dissolution of STLP
resulted in a write-off of $122,000 by the Company of deferred financing costs
in connection with the early extinguishment of debt and the write-off of
$203,000 in oil and gas properties resulting from the above-mentioned
conveyance.
(4) ROYALTY EXCHANGE AND ISSUANCE OF PREFERRED STOCK
In March 1993, the Company entered into a transaction in which six
institutional participants in the TCW Commingled Debt and Royalty Fund I (the
"Fund") exchanged their proportionate share of the gross royalty and net profit
interests in certain oil and gas properties previously included in the Fund for
an aggregate of 30,000 shares of the Company's 8% Series B Convertible Preferred
Stock (the "Series B Preferred Stock") priced at $100 per share (the "Royalty
Exchange"). The Company had made an offer to all participants of the Fund, of
which participants holding 60% of the total interests accepted the offer. Trust
Company of the West ("TCW") is the manager and trustee of the Fund. As of
December 31, 1994, TCW, acting on behalf of certain pension funds, was a holder
of approximately 23% of the outstanding common stock of the Company.
The Royalty Interests acquired by the Company consisted of gross overriding
royalty interests and net profit interests, which were estimated to have total
proved net reserves of 124,000 barrels of oil and 2.64 Bcf of natural gas. The
total value ascribed to the Royalty Interests by the Company was $3,073,000.
The Series B Preferred Stock is convertible at the option of the respective
holders into the Company's common stock at $3.90 per share and will be
automatically converted into common stock of the Company at $3.90 per share on
December 31, 1998. (See Note 12.) During 1993, certain holders of the Series B
Preferred Stock issued pursuant to the Royalty Exchange elected to convert an
aggregate of 7,500 shares of Series B Preferred Stock to common stock of the
Company. Pursuant to the terms of the Series B Preferred Stock, an aggregate of
192,300 shares of common stock of the Company was issued to such holders and
their 7,500 shares of Series B Preferred Stock were canceled.
(5) ACQUISITION OF BAKERSFIELD PROPERTIES
On June 30, 1994, the Company acquired a 75% interest in substantially all
of the oil and gas properties, a natural gas processing plant and gathering
lines owned by Bakersfield Energy Resources, Inc. and its affiliates ("BER").
Reserves acquired are principally natural gas and light (35-40(++) gravity), low
sulfur, crude oil
F-13
<PAGE> 120
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
located in Kern County, California. The Company estimated that net proved
reserves attributable to such interests totaled 6.6 million barrels ("MMbls") of
oil and 46.8 Bcf of gas at December 31, 1993. Also acquired was a 75% interest
in a 23 MMcf per day gas processing plant and associated gathering lines. BER
will remain the operator of the properties and plant acquired by the Company.
Additionally, the Company and BER entered into a three-year joint acquisition
agreement which will give each the right to participate in acquisitions of oil
and gas interests located within the state of California by the other.
The purchase price for such interests was approximately $46,000,000,
consisting of $42,000,000 in cash plus 25,000 shares of the Company's common
stock, 30,000 shares of the Company's Series E Junior Convertible Preferred
Stock at $100 per share and a seven-year callable warrant to purchase 1,000,000
shares of common stock at an exercise price of $5.00 per share to which the
Company ascribed a value of $850,000. To finance the acquisition, the Company
amended its existing credit facility with a group of lenders led by
Internationale Nederlanden (U.S.) Capital Corporation ("ING Capital"), formerly
known as NMB Postbank Groep n.v., to include First Union National Bank of North
Carolina ("First Union") and to increase the total commitment under such
facility to $34,400,000. The Company financed the cash portion of the purchase
price with (i) approximately $25,400,000 of incremental borrowings under the
Amended Credit Agreement; (ii) $5,000,000 of borrowings under a bridge loan
facility with ING Capital; (iii) $10,000,000 gross proceeds from the private
placement of 100,000 shares of the Company's Series D Preferred Stock and
warrants to purchase 2,305,263 shares of the Company's common stock and (iv) a
portion of the $3,482,000 of gross proceeds from the private placement of
1,071,538 shares of common stock. The assets acquired in this transaction were
accounted for by the purchase method of accounting.
The following table presents the unaudited pro forma condensed consolidated
statements of operations for the years ended December 31, 1994 and 1993,
assuming the acquisition of the Bakersfield Properties and the related
financings had occurred at January 1, 1993 (amounts are in thousands except per
share data):
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
-------------------
1994 1993
------- -------
<S> <C> <C>
Total revenues................................................... $19,304 $17,047
======= =======
Net loss attributable to common stockholders..................... $(1,587) $ (129)
======= =======
Net loss per common share........................................ $ (0.22) $ (0.02)
======= =======
</TABLE>
Pro forma net loss for the year ended December 31, 1994 includes losses of
approximately $600,000 attributable to gas plant operations. These losses were
incurred during the start-up phase of the gas plant prior to its acquisition by
the Company and are not expected to be incurred in future periods.
(6) PRODUCTION NOTE PAYABLE
STLP was a party to a note payable agreement ("Note Agreement") with
Midland Bank for borrowings of up to $9,000,000, as amended.
Interest on the production note accrued at either the bank's prime rate
plus 1.5% or the LIBOR plus 3% (6.257% at December 31, 1993) and the production
note was secured by STLP's oil and gas properties. Net cash flow generated from
operations of the STLP properties was generally dedicated to reduce borrowings
outstanding under the note. Also, as required by the Note Agreement, STLP
entered into a firm three-year gas purchase contract with Washington Energy
Marketing, Inc., an affiliate of WEEX. (See Note 10.)
In March 1994, STLP was dissolved, and the Company paid its 37.875%
proportionate share ($3,103,584) of the Midland Bank loan outstanding with STLP.
F-14
<PAGE> 121
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(7) SUBORDINATED BRIDGE LOAN
In connection with the acquisition of the Bakersfield Properties, the
Company obtained from ING Capital a $5,000,000 bridge loan facility (the "Bridge
Loan"). Outstanding advances under the Bridge Loan bear interest at a floating
rate, at the Company's option, of prime plus 2% or LIBOR plus 4% per annum until
September 30, 1994 and escalating by (i) .75% per annum from October 1, 1994
through January 31, 1995 and (ii) 1.5% per annum at all times after January 31,
1995.
As a further condition to the Bridge Loan, the Company must issue to ING
Capital shares of its common stock if the $5,000,000 Bridge Loan is not paid in
full by January 1, 1995, with 25,000 shares to be issued on January 2, 1995 and
an additional 25,000 shares to be issued on the second day of each second month
thereafter until the maturity of the Bridge Loan. The Company has issued 50,000
shares of its common stock to ING Capital subsequent to December 31, 1994,
pursuant to these terms.
In addition, the Company is obligated to pay a commitment fee of 0.50% per
annum on the unused portion of the commitment. The Bridge Loan contains
substantially the same restrictive covenants as the Company's Amended Credit
Agreement. (See Note 8.)
The Company's Bridge Loan with ING Capital matures on July 1, 1995 and any
principal balance outstanding must be repaid at that date. Based on currently
projected cash flows, the Company would have a shortfall of approximately
$1,300,000 with respect to its ability to repay the Bridge Loan at that date.
These projected cash flows do not contemplate any decrease in oil and gas prices
or declines in estimated oil and gas production from existing properties during
the first six months of 1995. The Company is protected from price declines on a
substantial portion of its production as a result of its hedging activities and
has experienced no material adverse effects from prices during the first quarter
of 1995.
At March 30, 1995, the Company was in discussions with ING Capital to
refinance the Bridge Loan before the maturity date of July 1, 1995. The Company
and ING Capital are discussing several different refinancing alternatives,
including extinguishing the Bridge Loan and restructuring the Company's
$34,400,000 credit facility with ING Capital to include the $5,000,000 due under
the Bridge Loan. This would have the effect of increasing the principal balance
of the Company's credit facility to $39,400,000 and increasing the current
portion of long-term maturities (due December 31, 1995) from $2,511,000 to
$2,876,000. Based on currently projected cash flows as previously described, the
Company believes that it would have sufficient cash available to meet this
increased obligation. The Company and ING Capital are also discussing
restructuring the Bridge Loan into a developmental drilling credit facility that
would begin amortizing after the Company had incurred its 1995 and 1996
developmental drilling capital expenditures and began realizing sufficient cash
flows from the results of these drilling activities to meet the amortization
obligation, or extending the due date of the Bridge Loan for a period of time
sufficient for the Company to raise equity proceeds to repay it.
The Company is optimistic about its ability to refinance the Bridge Loan
due to a substantial increase in year-end proved reserves, which should have the
effect of increasing the Company's borrowing base under its credit facility with
ING Capital. ING Capital is currently in the process of evaluating the
redetermination of the Company's borrowing base with respect to the credit
facility, which will be completed by May 15, 1995. Management believes that the
borrowing base will be redetermined with terms no less favorable than those
currently in place. However, there can be no assurances that the Company will be
successful in its attempts to refinance the Bridge Loan with ING Capital by its
due date.
In the event that the Company is not successful in refinancing the Bridge
Loan with ING Capital by the maturity date, the Company will sell to the
operator of its Bakersfield Properties a 4 1/2% royalty interest on a portion of
its future undeveloped production from certain of those properties for a sale
price of $3,000,000. The Company currently has an executed letter agreement in
place with Bakersfield Energy (whose Chairman of the Board and Chief Executive
Officer is also a director of the Company) to effect this transaction, but the
F-15
<PAGE> 122
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Company would have the sole option to cancel the sale in the event it is able to
refinance the Bridge Loan or repay it with proceeds from an equity offering or
other financing. The Company believes that the proceeds from this sale, if it is
completed, combined with currently projected cash flows from operations would be
sufficient to repay the Bridge Loan at July 1, 1995.
Regardless of expected incremental cash flows from the Bakersfield
Properties, initial results of its developmental drilling activities, or the
results of its efforts to refinance the Bridge Loan, the Company intends to seek
additional equity financing within the next year to reduce debt, retire a
portion of the Redeemable Series D Preferred Stock and finance its drilling
activities which are expected to accelerate in the third quarter of 1995.
There can be no assurance that the Company will be successful in its
endeavors to sell its securities or raise sufficient capital to reduce debt or
fully fund its planned developmental drilling activities. Furthermore, the
Company's highly leveraged capital structure may limit the Company's ability to
obtain outside capital on terms acceptable to the Company.
(8) LONG-TERM DEBT
The Company had in effect during 1993 a revolving credit and term loan
facility ("Credit Agreement") with ING Capital in the amount of $6,200,000.
In March 1994, the Company entered into a new revolving credit facility
with ING Capital. Such facility provided for (i) a loan commitment of
$10,000,000 with a commitment termination date of January 1, 1995; (ii) an
initial borrowing base of $9,000,000; and (iii) a renewal of the revolver with
repayment of the outstanding balance in 16 consecutive quarterly installments
beginning March 31, 1995. The facility also contained certain covenants and
restrictions with respect to dividends, general and administrative expenses,
hedging activities, fixed charge coverage ratios and use of borrowings.
The Company used initial borrowings of $8,347,000 under such facility to
(i) refinance amounts owed under the previous facility ($4,963,000), (ii) repay
all of the Company's proportionate share (37.875%) of the production note owed
upon dissolution of STLP ($3,120,000 including accrued interest), and (iii) pay
a capital contribution ($264,000) in connection with the dissolution of STLP. As
a result of the above refinancings, the Company incurred an extraordinary
non-cash expense of $122,000 resulting from the early extinguishment of debt and
write-down of deferred financing charges. (See Note 3.)
Additionally, in connection with the closing of the new credit facility,
the Company issued a warrant to purchase 76,000 shares of the Company's common
stock to ING Capital with an exercise price of $5.50 per share (subject to
adjustment in certain circumstances) and an expiration date of March 18, 1997.
Effective upon the closing of the acquisition of the Bakersfield
Properties, the Company amended its facility with ING Capital (the "Amended
Credit Agreement") to provide for a total commitment of $34,400,000. One-half of
the commitment for the Amended Credit Agreement was funded by First Union.
Outstanding advances under the Amended Credit Agreement bear interest at a
floating rate of, at the Company's option, prime plus 1% or LIBOR plus 3% per
annum. In addition, the Company must pay a commitment fee of 0.50% per annum on
the unused portion of the commitment. A financing fee of $1,000,000 was paid to
ING Capital and First Union in connection with the closing of the Amended Credit
Agreement. In connection with the Amended Credit Agreement, the Company issued
to ING Capital and First Union warrants to purchase an aggregate 250,000 shares
of common stock at an exercise price of $4.75 per share with an expiration date
of December 31, 1999. The Company has ascribed a value of $230,000 to these
warrants.
On a semi-annual basis, ING Capital will redetermine the amount of
available borrowing capacity based upon their review of the Company's oil and
gas reserves. The next such review is required to be completed by May 15, 1995.
If the outstanding principal balance exceeds the redetermined borrowing
capacity, the
F-16
<PAGE> 123
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Company must repay such excess. Management believes that the borrowing base will
be redetermined with terms no less favorable than those currently in place.
The principal balance outstanding under the Amended Credit Agreement at
December 31, 1995 will be payable in 22 quarterly installments commencing
December 31, 1995, with maturity at March 31, 200l. Pursuant to the terms of the
Amended Credit Agreement, the Company paid $360,000 to enter into hedge
contracts limiting the interest rate to a ceiling of no more than 8% per annum
on $16,000,000, $14,000,000, $15,000,000 and $12,000,000 of the outstanding
principal balance under such agreement for the calendar years 1995, 1996, 1997
and 1998, respectively.
Pursuant to the terms of the Amended Credit Agreement, the Company was
required to enter into hedging contracts as of July 1, 1994 with respect to
certain of its proved developed producing ("PDP") oil and gas production volumes
attributable to the PDP reserves from the Bakersfield Properties for up to five
years. (See Note 10.)
In the event the Company receives net proceeds from the sale of its equity
securities in an amount less than or equal to $10,000,000 before July 1, 1995,
then all of such net proceeds must be used to prepay the outstanding principal
under the Amended Credit Agreement and the maximum loan amount under the Amended
Credit Agreement will be reduced to $30,000,000. In the event the Company
receives net proceeds from the sale of its equity securities in an aggregate
amount in excess of $10,000,000 but less than $15,000,000 before July 1, 1995,
then (i) $10,000,000 of such net proceeds must be used to prepay the outstanding
principal under the Amended Credit Agreement, (ii) the amount of such net
proceeds in excess of $10,000,000 must be used to repay the outstanding
principal of the bridge loan facility, and (iii) the maximum loan amount under
the Amended Credit Agreement will be reduced to $30,000,000. If before July 1,
1995, the Company has received net proceeds from the sale of its equity
securities in an aggregate amount in excess of $15,000,000, then (i) $10,000,000
of such net proceeds must be used to prepay the outstanding principal under the
Amended Credit Agreement, (ii) $5,000,000 must be used to pay the Bridge Loan
and (iii) the maximum loan amount under the Amended Credit Agreement will remain
$34,400,000.
The Amended Credit Agreement also provides (i) that no dividends may be
paid on any of the Company's capital stock, nor may the Company redeem, purchase
or acquire any such stock except that (a) cash dividends (not to exceed $350,000
in any year) may be paid on the Company's Series A, B, C, D and E Preferred
Stock, (b) the Company may pay stock dividends on and redeem the Series D
Preferred Stock in accordance with the terms thereof, (c) the Company may
repurchase certain of its warrants and (d) the Company may redeem up to
$2,500,000 (2,500 shares) of its Series D Preferred Stock and up to $3,300,000
of its Series E Preferred Stock with the proceeds in excess of $15,000,000 from
a subsequent equity offering; (ii) that general and administrative expenses may
not exceed $1,900,000 for any fiscal year (with the exception that, as amended,
it may not exceed $2,200,000 for the year ended December 31, 1994), excluding
certain specified exceptions as may be approved by ING Capital at its reasonable
discretion; (iii) that the Company meet certain requirements relating to its
current ratio (not less than 1.1 to 1.0), net worth (not less than $6,750,000
plus 75% of consolidated net income after 1994 and 90% of any equity securities
issued by the Company after June 30, 1994) and fixed charge coverage ratio (not
less than 1.2 to 1.0); (iv) that the Company may not assume any additional
indebtedness other than certain indebtedness to service contractors and certain
indebtedness relating to hedging arrangements; and (v) that an event of default
will occur if for any reason Mark G. Harrington shall cease to act as the
Chairman of the Board and Chief Executive Officer of the Company and shall not
be replaced within 30 days by a successor that is acceptable to ING Capital or a
change of control shall occur with respect to the Company. The Company was in
compliance with such covenants at December 31, 1994 with the exception of the
current ratio covenant. The Company had a working capital deficit (excluding the
Bridge Loan and current portion of long-term debt, as prescribed by the Amended
Credit Agreement) of $432,000 at December 31, 1994. ING Capital has provided the
Company with a waiver of this event of default at December 31, 1994 and has
committed to waive any similar event of
F-17
<PAGE> 124
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
default through March 31, 1995. Management believes that the Company is
currently in compliance with this covenant and, based on its projected
operations for the remainder of 1995 and its plan to limit capital expenditures
as necessary to manage its working capital levels, it will remain in compliance
with this covenant throughout the year.
Estimated maturities of long-term debt under the New Credit Agreement based
on the amount outstanding at December 31, 1994 are as follows:
<TABLE>
<S> <C>
1995..................................................... $2,511,200
1996..................................................... $7,017,600
1997..................................................... $6,604,800
1998..................................................... $5,504,000
1999..................................................... $4,953,600
2000..................................................... $4,403,200
2001..................................................... $3,405,600
</TABLE>
(9) SERIES D PREFERRED STOCK (REDEEMABLE)
On June 30, 1994, the Company issued 100,000 shares of Series D Preferred
Stock, with detachable warrants described below, in a private placement at a
price of $100.00 per share for an aggregate value of $10,000,000.
The Series D Preferred Stock receives dividends at the rate of 9% per
annum, payable in cash or in shares of the Series D Preferred Stock, at the
option of the Company until the earlier of (i) the consummation of the first
public equity offering by the Company following the closing of the private
placement and (ii) the second anniversary of the closing of the private
placement of the Series D Preferred Stock; thereafter, quarterly cumulative cash
dividends are payable by the Company. If the Company is unable for any reason to
pay the required amount of dividends in cash after the occurrence of the
earliest of such dates referred to in clauses (i) and (ii) of the preceding
sentence, dividends may be accrued at a rate of 12% or paid in shares of Series
D Preferred Stock at the option of the holders of the Series D Preferred Stock.
The number of warrants attached to the shares of Series D Preferred Stock issued
as paid-in-kind dividends will be increased by 50% upon each such circumstance.
The Series D Preferred Stock is redeemable in cash at any time, in whole or
in part, at the option of the Company, at a price of $100.00 per share plus
accrued and unpaid dividends. The Company must redeem (i) one-third of the
shares of Series D Preferred Stock outstanding on each of June 30, 1999, June
30, 2000 and June 30, 2001, and (ii) all of the outstanding shares of Series D
Preferred Stock upon the occurrence of a "corporate change" as defined. In
addition, the Company must redeem 25,000 shares of Series D Preferred Stock, at
a price of $100 per share, immediately following the consummation of the
Company's first public equity offering following the closing of the private
placement in which the Company receives net proceeds of at least $17,500,000. If
the Company fails to redeem such shares by June 30, 1995, holders of Series D
Preferred Stock will receive an additional 200,000 warrants at the then existing
exercise price.
Holders of Series D Preferred Stock are entitled to vote on all matters as
to which holders of common stock are entitled to vote, in the same manner and
with the same effect as such holders of common stock, voting together with the
holders of common stock as one class, except for certain matters in which
holders of the Series D Preferred Stock have class voting rights. When voting as
a class with the holders of common stock, subject to certain conditions, each
share of Series D Preferred Stock will entitle the holder thereof to a number of
votes per share equal to a fraction, the numerator of which equals $100 and the
denominator of which equals the exercise price, on the record date for
determining the holders of common stock entitled to vote on the matter submitted
thereto, of the warrants issued in connection with the Series D Preferred Stock.
At any time when 25% or more of the authorized shares of Series D Preferred
Stock are outstanding, the
F-18
<PAGE> 125
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
holders of Series D Preferred Stock, voting as a separate class, have the right
to elect one member of the Board of Directors. Additionally, so long as the
Series D Preferred Stock is outstanding, the Company must have the approval of a
majority of the voting power of the Series D Preferred Stock outstanding, voting
as a separate class, to (i) issue any stock senior to or in parity with the
Series D Preferred Stock, (ii) repurchase or redeem any shares of common stock
or preferred stock (other than Series E Junior Convertible Preferred Stock as
described in Note 8), (iii) sell, lease or convey all, or substantially all, of
the assets of the Company or (iv) incur any indebtedness other than senior debt.
The Company may not pay any dividends on its common stock or the Series E
Preferred Stock unless all accrued dividends on the Series D Preferred Stock
have been paid.
Upon issuance of the Series D Preferred Stock, the Company issued to the
holders thereof warrants to purchase 2,305,263 shares of common stock at an
initial exercise price of $4.75 per share. The number of shares purchasable upon
exercise and the exercise price of the warrants are subject to adjustment, on a
weighted average basis, upon certain issuances by the Company of common stock,
securities convertible into or exchangeable or exercisable for common stock, or
rights to subscribe for or purchase any of the foregoing. If the Company has not
completed a public offering of its equity securities with net proceeds of at
least $17,500,000 within one year following the closing of the private placement
of the Series D Preferred Stock, the exercise price of the warrants decreases to
78.95% of the exercise price ($3.75 based on the initial exercise price) and the
number of shares of common stock will be adjusted accordingly. The warrants are
exercisable at any time at the option of the holder thereof until two years
following the redemption of the Series D Preferred Stock. The warrants may be
called by the Company, at a price of $1.00 per warrant, beginning three years
following the closing of the private placement of the Series D Preferred Stock
if the common stock has traded, for at least 30 of the 40 trading days
immediately prior to call, at a price greater than or equal to 200% of the then
exercise price of the warrants.
The Company has ascribed a value to these warrants of $0.92 per warrant,
based on certain warrant valuation models, for an aggregate value of $2,121,000.
Pursuant to generally accepted accounting principles, the Company has allocated
the $2,121,000 ascribed value of the warrants to additional paid-in capital and
correspondingly reduced the face amount of the Series D Preferred Stock
reflected on its balance sheet to $7,879,000 at the date of issuance.
Estimated amounts mandatorily redeemable under the terms of the Series D
Preferred Stock, based on the amount outstanding at December 31, 1994, are as
follows:
<TABLE>
<S> <C>
1995..................................................... $ --
1996..................................................... $ --
1997..................................................... $ --
1998..................................................... $ --
1999..................................................... $3,484,700
2000..................................................... $3,485,200
2001..................................................... $3,485,200
</TABLE>
To the extent future dividends are paid in shares of the Series D Preferred
Stock, future amounts mandatorily redeemable will increase.
(10) COMMITMENTS AND CONTINGENCIES
Crude oil and natural gas hedge arrangements
The Company has a contract with an affiliate of ING Capital to hedge 8,000
barrels of oil per month from February 1994 to August 1996 which provides for a
"ceiling" price of $18.75 per barrel and a "floor" price of $15.80 per barrel.
Pursuant to such contract, if the NYMEX price of light, sweet crude oil is lower
F-19
<PAGE> 126
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
than $15.80, then the Company is paid the difference between the NYMEX price and
$15.80 for each barrel hedged; and, if the NYMEX price is higher than $18.75,
then the Company pays the difference between the NYMEX price and $18.75 for each
barrel hedged. Gains or losses under the agreement are recorded in oil revenues
in periods in which the hedged production occurs and are settled on a monthly
basis.
The Company has a gas sales contract with Washington Energy Marketing, Inc.
("WEM"), a subsidiary of Cabot Oil and Gas Corporation, under which the Company
receives approximately $1.80 per MMBtu at the wellhead for all of its gas
produced up to an agreed level of production in each field of the South Texas
Properties (up to a maximum of approximately 3,031 MMBtu per day, net to the
Company's interest, in the aggregate for all such fields in 1995) through
October 1995. The gas sales contract was amended in September 1993 to provide a
"floor" price of $2.05 per MMBtu for certain volumes from January 1995 through
December 1995. The amendment also provides that if the gas sales contract is not
terminated prior to January 1, 1996, the Company will pay WEM a premium equal to
the then market cost of purchasing a hedge contract with a "floor" price of
$2.05 per MMBtu, less $.03 per MMBtu, for the contract volumes during 1996. The
gas sales contract and the gas hedge contract described below were entered into
by and between WEM and Washington Energy Exploration, Inc. in its capacity as
the managing general partner of STLP, the partnership through which the Company
held its South Texas Properties until the dissolution of STLP in March 1994. In
1994, WEM was acquired by Cabot Oil and Gas Corporation ("Cabot"). Beginning in
1995, Cabot has not paid the $1.80 per MMBtu price for volumes of gas delivered
pursuant to the gas sales contract, but rather has paid the spot market price
for such gas because Cabot claims that, as a result of the dissolution of STLP,
the gas sales contract was cancelled effective December 31, 1994. In March 1995,
the Company filed a lawsuit against Cabot to enforce the terms of the gas sales
contract because the Company believes that such contract was assigned to the
Company as part of the dissolution of STLP and, therefore, is still in effect.
Although the Company believes that it will recover the amounts owed by Cabot and
the court will enforce the terms of the gas sales contract, the Company cannot
predict the outcome of such lawsuit.
The Company was also subject to a separate hedge contract intended to
provide a hedge against price fluctuations for gas produced from the South Texas
Properties in excess of those sold pursuant to the gas sales contract described
above. The hedge contract provided for a fixed price of $1.91 per MMBtu with
respect to 3,788 MMBtu of gas from December 1993 through November 1994. Pursuant
to such contract, the Company paid the difference between $1.91 per MMBtu and
the index price with respect to such quantity of gas when the index price was
higher than $1.91 per MMBtu, and the Company was paid the difference between
$1.91 per MMBtu and the index price with respect to such quantity of gas when
the index price was lower than $1.91 per MMBtu. The index price was determined
by reference to the NYMEX price for gas delivered at Henry Hub, Louisiana at the
close of each monthly settlement period. During the year ended December 31,
1994, the index price under the hedge contract averaged $1.90 per MMBtu. Gas
produced from the South Texas Properties in excess of the gas sold, pursuant to
the gas hedging contract described above, was not physically delivered under
such hedge contract, but instead such gas was sold in the spot market.
During the year ended December 31, 1994, the total quantity of gas subject
to the gas sales contract exceeded the Company's actual production from the
South Texas Properties. The Company covered this shortfall in production by
purchasing gas in the spot market and delivered such gas to fulfill the terms of
such contract. Because the average spot market price of gas during 1994 was
lower than the gas sales contract price of $1.80, the Company realized a small
gain from the sale of the gas purchased to cover the shortfall. With respect to
the gas hedge contract, the total quantity of gas subject to such contract also
exceeded the Company's actual production from the South Texas Properties during
1994. The former general partner of STLP and its successor paid all amounts owed
as a result of such production shortfall and have not requested any
reimbursement for such amounts from the Company. The Company does not believe it
owes such former general partner nor its successor any such reimbursement.
F-20
<PAGE> 127
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Pursuant to the terms of its credit facility, the Company was required to
enter into contracts as of July 1, 1994 with respect to 75% of its projected PDP
oil production for the following five years, 50% of its projected PDP gas
production attributable to the PDP reserves from the Bakersfield Properties for
the following two years and 40% of its projected PDP gas production attributable
to the PDP reserves from the Bakersfield Properties for the following three
years. Accordingly, the Company entered into a hedging contract covering 75% of
its projected PDP oil production from the Bakersfield Properties until June 30,
1997 at a reference price of $17.25 per barrel. Pursuant to such hedge contract,
the Company pays half of the difference between $17.25 and the index price (the
NYMEX price for light, sweet crude oil) if the index price is higher than
$17.25; and the Company receives the difference between $17.25 and the index
price if the index price is lower than $17.25, as determined on a monthly basis.
Additionally, the Company entered into a gas sales contract with Mock Resources,
Inc. covering the gas production from the Bakersfield Properties pursuant to
which the Company will receive (i) $1.985 per MMBtu for the delivery of 3,750
MMBtu of gas per day from October 1, 1994 to September 30, 1995; (ii) $2.0297
per MMBtu for the delivery of 3,000 MMBtu of gas per day from October 1, 1995 to
September 30, 1996 and (iii) $2.0753 per MMBtu for the delivery of 2,500 MMBtu
of gas per day from October 1, 1996 to September 30, 1997.
The Company entered into a firm gas sales contract with Valero Gas
Marketing L.P. for 3,750 MMBtu/day delivered into the SoCal Pipeline System. The
term of the contract is one year, commencing December 1, 1994 and ending
November 30, 1995. The composite average price received by the Company for the
gas sold is $1.81/MMBtu.
Lease obligations
Future net minimum rental payments for office and office equipment lease
commitments as of December 31, 1994 aggregated approximately $195,000, $180,000
and $52,000 for 1995, 1996 and 1997, respectively.
Rental expense in the aggregate under noncancellable long-term operating
leases was approximately $159,000, $166,000 and $80,000 for 1994, 1993 and 1992,
respectively.
Sale of Royalty Interest
In the event that the Company is not successful in refinancing the Bridge
Loan with ING Capital by the July 1, 1995 maturity date, the Company has a firm
option to sell to Bakersfield Energy, the operator of the Bakersfield
Properties, a 4 1/2% royalty interest with special provisions on a portion of
its production from certain of those properties for a sale price of $3,000,000.
The sale would be effective January 1, 1995, but royalty payments
attributable to the 4 1/2% royalty sold would accumulate for the period January
1, 1995 through June 30, 1998, with payments beginning on July 1, 1998.
The Company currently has an executed letter agreement with Bakersfield
Energy (whose Chairman of the Board and Chief Executive Officer is also a
director of the Company) to effect this transaction, but the Company has the
sole option to cancel such agreement. Any sale would be contingent upon a
mutually acceptable purchase and sale or exchange agreement.
(11) INCOME TAXES
The Company files a consolidated United States federal income tax return
for its United States incorporated entities.
F-21
<PAGE> 128
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The difference between the federal income tax statutory rate (35% in 1994
and 1993, and 34% in 1992) and the effective tax rate of zero for such years
reflected in the accompanying consolidated statements of operations relates to
the uncertainty of utilizing future benefits from net operating loss
carryforwards.
The Company did not pay any United States regular or alternative minimum
federal income taxes during the three-year period ended December 31, 1994 due to
taxable losses in all three years. The Company did not pay any Canadian income
taxes arising from HCO's activities in 1992 due to its net operating losses.
At December 31, 1994, the Company had accumulated net operating loss
("NOL") carryforwards for United States federal income tax purposes of
approximately $14,815,000. Certain Company security transactions occurring since
1986 have triggered changes in the stock ownership of the Company aggregating
more than 50% over a three-year period. Accordingly, NOL carryforwards of
approximately $5,455,000 arising prior to 1987 are limited to approximately
$755,000 of future utilization in the aggregate (expiring in the year 2001), and
certain NOLs are subject to limitations on the amounts that may be used to
reduce taxable income in any given year. Accordingly, the total net operating
loss carryforwards available to reduce federal income taxes in the future are
approximately $10,115,000. Such net operating loss carryforwards expire as
follows for the years ending December 31 (amounts in thousands):
<TABLE>
<S> <C>
1998....................................................... $ 550
2001....................................................... 205
2002....................................................... 90
2003....................................................... 1,555
2004....................................................... 755
2006....................................................... 1,045
2007....................................................... 1,150
2008....................................................... 1,449
2009....................................................... 3,316
-------
$10,115
=======
</TABLE>
Under the provisions of FAS No. 109, the income tax effects of temporary
differences between financial and income tax reporting and carryforwards that
give rise to deferred income tax assets and liabilities at December 31, 1994 and
1993 are as follows (amounts in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
1994 1993
------- -------
<S> <C> <C>
Deferred tax assets:
Net operating loss carryforwards.............................. $ 3,540 $ 2,394
Accounts payable.............................................. 1,757 127
Other......................................................... -- 40
------- -------
Total deferred tax assets.................................. 5,297 2,561
Less valuation allowances.................................. (2,472) (2,134)
------- -------
Net deferred tax assets.................................... $ 2,825 $ 427
------- -------
Deferred tax liabilities:
Intangible drilling costs..................................... $(1,285) $ (145)
Depreciation of property and equipment........................ (294) (86)
Accounts receivable........................................... (1,152) (168)
Other......................................................... (94) (28)
------- -------
Total deferred tax liabilities............................. (2,825) (427)
------- -------
Net deferred taxes......................................... $ -- $ --
======= =======
</TABLE>
F-22
<PAGE> 129
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(12) STOCKHOLDERS' EQUITY
Common stock
In August 1992, the Company completed the private placement of 233,077
investment units at a sale price of $13.00 per unit. Each investment unit
consisted of four common shares of the Company and a warrant to purchase one
common share of the Company at a price of $5.00 per share exercisable for a
period of three years. A total of 932,308 common shares and 233,077 warrants
were issued pursuant to the sale of the investment units, resulting in net
proceeds to the Company of $2,219,000 after related offering costs and expenses.
The investment units were sold in the United States through Laidlaw Equities,
Inc., and internationally through Oakes, Fitzwilliams & Co., Ltd. As additional
consideration for acting as private placement agents in connection with this
transaction, certain financial institutions received warrants to purchase an
aggregate of 58,269 common shares of the Company at a price of $5.00 per share,
exercisable for a period of three years. The Company assigned no value to these
warrants in its financial statements.
In November 1992, the Company issued to TCW, a California trust company
acting on behalf of certain pension funds, 1,474,359 common shares of the
Company and warrants to purchase 200,257 common shares of the Company,
exercisable for a period of three years at a price of $5.00 per share. The
Company received $700,000 and all of TCW's 99% limited partner interest in HTACP
and warrants to acquire 400,000 common shares of HCO at a price of $1.85 CDN per
share. The assets of HTACP consisted primarily of 1,950,000 common shares of
HCO. In addition, TCW was granted certain registration rights and rights with
respect to the election of one of its nominees as a director of the Company.
During 1992, the Company issued 10,000 common shares at a price of $2.58
per share, pursuant to the exercise of stock options, and issued 10,000 common
shares at a price of $2.10 per share, pursuant to a letter agreement.
During 1993, holders of 3,000 shares of Series A Preferred Stock converted
these shares into 42,857 common shares of the Company; and holders of 7,500
shares of Series B Preferred Stock converted these shares into an aggregate of
192,300 common shares of the Company. Also during 1993 the Company issued
101,850 common shares at an average price of $2.42 per share pursuant to the
exercise of stock options.
In June 1994, the Board of Directors adopted (and the shareholders
approved) an amendment to the Company's Certificate of Incorporation increasing
the number of authorized shares of the Company's common stock from 15,000,000
shares to 25,000,000 shares.
On June 30, 1994, the Company sold 1,071,538 shares of unregistered
newly-issued common stock in a private placement at $3.25 per share for gross
proceeds of approximately $3,482,000. The Company also issued to a private
placement agent 267,369 shares of common stock in connection with this private
placement and the private placement sale of the Company's Series D Preferred
Stock and Series E Preferred Stock described in Notes 7 and 8. Additionally, the
Company issued to BER 25,000 shares of common stock as part of the consideration
for the purchase of the Bakersfield Properties.
Pursuant to the terms of the private placement sale agreement for the
1,071,538 shares of common stock, the Company filed on December 20, 1994 a
registration statement with the Securities and Exchange Commission covering the
resale of such shares of common stock by the initial purchasers thereof. Also
included in the registration statement were an additional 1,778,869 shares of
common stock, which included shares issued in a November 1992 private placement
sale, shares issuable upon conversion of the Company's Series B and Series C
Preferred Stock and shares issuable upon exercise of certain warrants. The
Company has agreed to keep a registration statement continuously effective for
at most three years.
During 1994, the Company issued 15,000 common shares at a price of $2.19
per share pursuant to the exercise of stock options and issued an aggregate of
60,375 restricted shares of common stock to officers at
F-23
<PAGE> 130
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
$4.00 per share. Also during 1994 the Company issued 16,671 common shares
pursuant to the payment of Series E Preferred Stock dividends.
Subsequent to December 31, 1994, the Company issued to ING Capital 50,000
common shares pursuant to the terms of the Bridge Loan.
Preferred stock
The Series A 8% Convertible Preferred Stock is convertible into common
shares of the Company at $3.50 per share, subject to certain anti-dilution
provisions. At the Company's option, the preferred stock may be redeemed. Upon
liquidation of the Company, the preferred shares have a preference over the
common shares equal to the sum of the aggregate offering price ($50 per share)
plus accrued but unpaid dividends thereon. The cumulative dividend of 8% is
payable quarterly. In April 1993, holders of 3,000 shares of the Series A
Preferred Stock converted these shares into 42,857 common shares of the Company.
The Series B Preferred Stock is convertible at the option of the respective
holders into the Company's common stock at $3.90 per share and will be
automatically converted into common stock of the Company at $3.90 per share on
December 31, 1998. If the Company merges or consolidates with, or sells all or
substantially all of its assets to, any entity which results in the stockholders
of the Company owning less than 50% of the voting power in the election of
directors of such other entity; or if any person other than Mark Harrington
(Chairman of the Board, Chief Executive Officer and director of the Company)
acquires more than 50% of the Company's outstanding common stock, then the
conversion price shall be adjusted to the then-current market price of the
Company's common stock, but only if the then-current market price is less than
the conversion price. The Company may at its option elect to redeem the Series B
Preferred Stock at $150 per share at any time after December 31, 1994, if the
then-current market price of the Company's common stock exceeds $5.85 per share
for 20 of 30 consecutive trading days. The cumulative dividend of 8% is payable
quarterly. During 1993, holders of 7,500 shares of the Series B Preferred Stock
converted these shares into 192,300 common shares of the Company.
Concurrent with the closing of the Company's purchase of JMI's 12.625%
interest in STLP in May 1993, the Company sold 10,000 shares of newly-issued
Series C 8% Convertible Preferred Stock to a New York-based investment
management company at $100.00 per share for an aggregate price of $1,000,000
cash (net proceeds of approximately $931,000 after expenses). The Series C 8%
Convertible Preferred Stock has substantially the same designations, preferences
and rights as the Series B 8% Convertible Preferred Stock.
Pursuant to the agreement with BER for the purchase of the Bakersfield
Properties, the Company issued 30,000 shares of Series E Junior Convertible
Preferred Stock (the "Series E Preferred Stock") to Bakersfield Gas, L.P. The
purchase price of the Series E Preferred Stock was $100.00 per share for an
aggregate face value of $3,000,000. The Series E Preferred Stock is convertible
at the option of the holder into common stock at a conversion price of $3.50 per
share, subject to adjustment for certain stock dividends, subdivisions,
reclassifications or combinations with respect to the common stock and for
certain other distributions or events of consolidation, merger or sale, lease or
conveyance of all or substantially all of the assets of the Company. The Series
E Preferred Stock receives a cash dividend, cumulative from the date of issuance
of the Series E Preferred Stock and payable quarterly in arrears commencing on
September 30, 1994, at the rate of $4.00 per share per annum until June 30,
1995, and thereafter at the rate of $9.00 per share per annum. The Company has
the option of paying dividends on the Series E Preferred Stock either in cash or
in shares of common stock. The Series E Preferred Stock is redeemable in cash at
any time, in whole or in part, at the option of the Company, at a price of
$110.00 per share, plus accrued and unpaid dividends. The Company must redeem
the Series E Preferred Stock in cash upon completion of its first underwritten
public offering of securities following the issuance of the Series E Preferred
Stock in which the net proceeds received by the Company equal or exceed
$20,800,000.
F-24
<PAGE> 131
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Each share of Series E Preferred Stock entitles the holder thereof to such
number of votes per share as equals the whole number of shares of common stock
into which each share of Series E Preferred Stock is then convertible, and each
share of Series E Preferred Stock is entitled to vote on all matters as to which
holders of common stock are to vote, in the same manner and with the same effect
as such holders of common stock, voting together with the holders of common
stock as one class, except for certain matters in which holders of the Series E
Preferred Stock have class voting rights. At any time while a minimum of 50% of
the shares of Series E Preferred Stock remain outstanding, the Company shall not
take any action to alter or repeal its Certificate of Incorporation or Bylaws
which would adversely affect the rights, privileges or powers of the Series E
Preferred Stock (other than the issuance of additional series of stock or
increases in the authorized amount of existing series of stock) without the
consent or approval of at least a majority of the voting power of the Series E
Preferred Stock. The Company may not pay any dividend on its common stock unless
all accrued dividends on the Series E Preferred Stock have been paid.
Preferred stock dividends
The Company has paid dividends on preferred stocks for the three years
ended December 31, 1994 as follows:
<TABLE>
<CAPTION>
PREFERRED STOCK 1994 1993 1992
---------------------------------------------------- -------- -------- -------
<S> <C> <C> <C>
8% Convertible (Series A, B, C)..................... $280,000 $246,468 $32,000
9% Redeemable (Series D)............................ 455,065 -- --
4% Convertible (Series E)........................... 60,000 -- --
-------- -------- -------
$795,065 $246,468 $32,000
======== ======== =======
</TABLE>
Dividends on 8% Series A, Series B and Series C Preferred Stock were paid
in cash for all years indicated.
Dividends on 4% Series E were paid, at the option of the Company, in common
stock of the Company in lieu of cash.
Dividends on 9% Series D were paid, at the option of the Company, in
additional shares of Series D Redeemable Preferred Stock.
(13) STOCK OPTIONS AND WARRANTS
Stock options
The Company had two incentive stock option plans which provided for the
issuance of up to an aggregate of 350,000 of the Company's common shares to key
employees and certain of the Company's directors. These plans expired January 1,
1990 and March 22, 1992, and no options are outstanding nor may any further
options be granted under these plans.
In October 1992, the Board of Directors adopted the Company's 1992 Stock
Option Plan and the Company's 1992 Nonemployee Directors' Stock Option Plan. In
May 1994, the Board of Directors adopted the Company's 1994 Stock Option Plan
and amended the 1992 Nonemployee Directors' Stock Option Plan to increase the
aggregate number of shares which may be issued under that plan. These plans
initially had available an aggregate of 1,525,000 shares of common stock and
allow the granting of options to purchase shares to employees, officers and
nonemployee directors of the Company at a price, for any incentive stock
options, not less than the fair market value of the common stock at the time of
grant. In case of options that do not constitute incentive stock options, the
options may not be less than 85% of the fair market value of the shares at the
time the option is granted. The options under these plans vest over a two-year
period and expire in five years.
F-25
<PAGE> 132
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In addition to the above stock option plans, the Company's Board of
Directors and Option Committee has, from time to time, granted options directly
to its officers and directors outside of the existing plans.
Pursuant to the Company's purchase of common shares of Jefferson Gas
Systems, Inc. in 1992 for approximately $500,000, the Company granted Jefferson
a 10-year option to purchase 150,000 common shares of the Company at an exercise
price of $4.875 per share, exercisable only after the Company exercises its
warrant to purchase 150,000 shares of Jefferson. The Company assigned no value
to these warrants in its financial statements.
All option transactions for the three years ended December 31, 1994 are
summarized as follows:
<TABLE>
<CAPTION>
NUMBER OF OPTIONS
---------------------------------------------
AVAILABLE
FOR
EXERCISE FUTURE
OUTSTANDING PRICE GRANT
----------- --------------- ---------
<S> <C> <C> <C>
Balance at December 31, 1991................ 404,350 $2.19 -- $11.25 --
Canceled.................................. (49,700) $2.19 -- $11.25 --
Exercised................................. (10,000) $2.19 -- $ 2.97 --
New plans................................. -- -- 425,000
Granted................................... 348,500 $3.13 -- $ 3.85 (198,500)
-------- ---------
Balance at December 31, 1992................ 693,150 $2.19 -- $ 3.85 226,500
Canceled.................................. (112,800) $3.30 --
Exercised................................. (101,850) $2.19 -- $ 2.80 --
Granted................................... 167,000 $3.88 -- $ 4.68 (167,000)
-------- ---------
Balance at December 31, 1993................ 645,500 $2.19 -- $ 4.68 59,500
Exercised................................. (15,000) $2.19 --
New plans or shares....................... -- -- 1,100,000
Granted................................... 330,000 $3.38 -- $ 4.33 (280,000)
-------- ---------
Balance at December 31, 1994................ 960,500 $2.20 -- $ 4.68 879,500
======== =========
</TABLE>
At December 31, 1994, options to purchase 960,500 common shares were
outstanding under these plans and agreements (697,000 exercisable with prices
ranging from $2.20 to $4.68 per share). At December 31, 1994, the aggregate
exercise price of these exercisable options was approximately $2,530,000.
Warrants
In addition to those warrants described below, warrants to purchase 148,690
shares of common stock had been granted to ING Capital pursuant to the terms of
the Company's original credit facility with ING Capital in 1989.
In August 1992, the Company issued, pursuant to the private placement sale
of investment units, 291,346 warrants to purchase common shares of its stock at
a price of $5.00 per share exercisable for a period of three years. The Company
assigned no value to these warrants in its financial statements.
In connection with the issuance of common shares, in November 1992 the
Company issued to TCW warrants to purchase 200,257 of its common shares
exercisable for a period of three years at a price of $5.00 per share. As the
exercise price was significantly higher than the current market price, no value
was attributed to the warrants.
In March 1994, the Company issued to ING Capital, pursuant to the New
Credit Agreement, a warrant to purchase 76,000 shares of the Company's common
stock with an exercise price of $5.50 per share exercisable for three years. The
Company assigned no value to these warrants in its financial statements.
F-26
<PAGE> 133
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Pursuant to the terms of the Amended Credit Agreement entered into in June
1994, the Company issued to ING Capital and First Union warrants to purchase an
aggregate 250,000 shares of common stock at an exercise price of $4.75 per share
with an expiration date of December 31, 1999. The Company has ascribed a value
of $230,000 to these warrants.
In April 1994, the Company issued to an institution for financial advisory
services warrants to purchase 25,000 shares of common stock at an exercise price
of $4.65 per share with an expiration date of April 18, 2001. The Company has
ascribed a value of $23,000 to these warrants.
In June 1994, upon issuance of the Series D Preferred Stock, the Company
issued to the holders thereof warrants to purchase 2,305,263 shares of common
stock at an initial exercise price of $4.75 per share. The number of shares
purchasable upon exercise and the exercise price of the warrants are subject to
adjustment upon certain issuances by the Company of common stock, securities
convertible into or exchangeable or exercisable for common stock, or rights to
subscribe for or purchase any of the foregoing. (See Note 9.)
The Company has ascribed a value to these warrants of $0.92 per warrant,
based on certain warrant valuation models, for an aggregate value of $2,121,000.
Pursuant to generally accepted accounting principles, the Company has allocated
the $2,121,000 ascribed value of the warrants to additional paid-in capital and
correspondingly reduced the face amount of the Series D Preferred Stock
reflected on its balance sheet by that amount at the date of issuance.
In connection with the purchase of the Bakersfield Properties in June 1994,
the Company issued to the sellers thereof warrants to purchase 1,000,000 shares
of common stock at $5.00 per share expiring on June 30, 2001. The Company
ascribed a value of $850,000 to these warrants in its financial statements.
All warrant transactions for the three years ended December 31, 1994 are
summarized as follows:
<TABLE>
<CAPTION>
NUMBER OF
WARRANTS EXERCISE
OUTSTANDING PRICE
----------- --------------
<S> <C> <C>
Balance at December 31, 1991............................. 1,815,357 $1.80 -- $3.20
Exercised.............................................. (1,474,359) $2.40
Expired................................................ (192,308) $1.80
Granted................................................ 491,603 $5.00
----------
Balance at December 31, 1992............................. 640,293 $3.20 -- $5.00
1993 Activity.......................................... -- --
----------
Balance at December 31, 1993............................. 640,293 $3.20 -- $5.00
Granted................................................ 3,757,294 $4.65 -- $5.50
----------
Balance at December 31, 1994............................. 4,397,587 $3.20 -- $5.50
==========
</TABLE>
At December 31, 1994, warrants to purchase 4,397,587 common shares were
outstanding and exercisable under all current agreements. At December 31, 1994,
the aggregate exercise price of these warrants was approximately $21,085,000.
F-27
<PAGE> 134
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(14) RESULTS OF OPERATIONS FOR OIL AND GAS PRODUCING ACTIVITIES
The following table sets forth the Company's results of operations for oil
and gas producing activities for the years ended December 31, 1994, 1993 and
1992 (amounts in thousands):
<TABLE>
<CAPTION>
1992
----------------------------
1994 1993 U.S. CANADA TOTAL
------- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
Oil and gas revenues................. $10,982 $6,507 $3,267 $2,895 $6,162
Gas plant revenues................... 1,978 -- -- -- --
------- ------ ------ ------ ------
12,960 6,507 3,267 2,895 6,162
------- ------ ------ ------ ------
Production costs..................... 3,610 2,249 1,304 1,371 2,675
Gas plant operating costs............ 1,708 -- -- -- --
Exploration expenses................. 329 229 200 571 771
Depreciation -- gas plant............ 159 -- -- -- --
Depletion, depreciation and
amortization....................... 3,694 2,619 881 1,122 2,003
------- ------ ------ ------ ------
9,500 5,097 2,385 3,064 5,449
------- ------ ------ ------ ------
Income (loss) before income taxes.... 3,460 1,410 882 (169) 713
Income tax expense................... 1,211 479 300 -- 300
------- ------ ------ ------ ------
Net income (loss).................... $ 2,249 $ 931 $ 582 $ (169) $ 413
======= ====== ====== ====== ======
</TABLE>
Approximately $154,000 of the Canadian net losses for 1992 are attributable
to minority interests. (See Notes 1 and 2.)
The results of operations from oil and gas producing activities were
determined in accordance with Statement of Financial Accounting Standards No. 69
and, therefore, do not include corporate overhead, interest and other general
income and expense items.
The following table sets forth the Company's depletion expense (excluding
any provision for impairment in value of oil and gas properties) per physical
unit of production measured in barrel of oil equivalents (with six Mcf of gas
equalling one barrel of oil) for each of the three years ended December 31,
1994:
<TABLE>
<CAPTION>
U.S. CANADA TOTAL
----- ------ -----
<S> <C> <C> <C>
1994................................................ $4.26 n/a $4.26
1993................................................ $5.13 n/a $5.13
1992................................................ $4.00 $3.67 $3.81
</TABLE>
n/a = non-applicable.
The above calculation does not include gas plant depreciation expense for
1994.
Production imbalances
Owners of an oil and gas property often take more or less production from a
property than entitled to, based on their ownership percentages in the property.
This results in a condition known in the industry as a production imbalance. The
Company follows the "take" (cash) method of accounting for production
imbalances. Under this method, the Company recognizes revenues on production as
it is taken and delivered to its purchasers. The Company's crude oil imbalances
are not significant. At December 31, 1994, the Company had taken approximately
193,689 Mcf of natural gas less than it was entitled to based on its interest in
certain properties, and approximately 2,497 Mcf more than its entitlement in
certain other properties, placing the Company at year end in a net
under-delivered position of approximately 191,192 Mcf of natural gas based on
its working interest ownership in the properties.
F-28
<PAGE> 135
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(15) CAPITALIZED COSTS RELATING TO OIL AND GAS PRODUCING ACTIVITIES
The aggregate amounts of capitalized costs relating to the Company's oil
and gas producing activities and the related accumulated depletion, depreciation
and amortization at December 31, 1994 and 1993 were as follows (amounts are in
thousands):
<TABLE>
<CAPTION>
1994 1993
-------- --------
<S> <C> <C>
Unproved properties............................................ $ 7,414 $ 401
Proved properties.............................................. 69,805 26,094
-------- --------
Total capitalized costs........................................ 77,219 26,495
Less -- accumulated depletion, depreciation and amortization... (16,565) (12,985)
-------- --------
$ 60,654 $ 13,510
======== ========
</TABLE>
The following table sets forth the costs incurred, both capitalized and
expensed, in the Company's oil and gas property acquisition, exploration and
development activities for the years presented (amounts in thousands):
<TABLE>
<CAPTION>
1992
----------------------------
1994 1993 U.S. CANADA TOTAL
------- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
Property acquisition costs --
Proved............................. $39,094 $5,148 $3,277 $ 152 $3,429
Unproved........................... 7,013 22 177 391 568
Exploration costs.................... 329 229 187 528 715
Development costs.................... 4,998 3,047 74 108 182
------- ------ ------ ------ ------
$51,434 $8,446 $3,715 $1,179 $4,894
======= ====== ====== ====== ======
</TABLE>
(16) MAJOR CUSTOMERS AND CREDIT RISK
Substantially all the Company's accounts receivable at December 31, 1994
result from oil and gas sales and joint interest billings to other companies in
the oil and gas industry. This concentration of customers and joint interest
owners may impact the Company's overall credit risk, either positively or
negatively, in that these entities may be similarly affected by industry-wide
changes in economic or other conditions. Such receivables are generally not
collateralized. Historically, credit losses incurred by the Company on
receivables generally have not been material. No known material credit losses
were experienced during 1994.
The Company grants short-term credit to its customers, primarily major oil
and gas companies, and generally receives payment within 30 to 60 days after the
month of production.
The following table summarizes the customers that accounted for more than
10 percent of the Company's oil and gas revenues in at least one of the years
indicated:
<TABLE>
<CAPTION>
CUSTOMER 1994 1993 1992
---------------------------------------------------------------- ---- ---- ----
<S> <C> <C> <C>
Cabot Oil and Gas Marketing Corp................................ 21% -- --
Kern Oil and Refining........................................... 17% -- --
Koch Oil Company................................................ 4% 9% 14%
Washington Energy Marketing, Inc................................ -- 36% 7%
</TABLE>
The Company considers its relationship with its current major customers to
be satisfactory.
F-29
<PAGE> 136
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(17) SUPPLEMENTARY PROFIT AND LOSS INFORMATION
Expenditures for maintenance and repairs on the oil and gas production
facilities have been charged to production costs in a manner consistent with
common industry practice. Because of the narrow distinction between maintenance
and repairs and other operating expenses, it is not practical to segregate these
items.
The Company did not incur advertising or research and development costs
during the three years ended December 31, 1994.
Taxes, other than payroll, income and franchise in the amounts of
approximately $794,000, $604,000 and $261,000 were charged to operations during
the years ended December 31, 1994, 1993 and 1992, respectively.
(18) OIL AND GAS PRODUCING ACTIVITIES (UNAUDITED)
Reserves
The process of estimating proved developed and proved undeveloped oil and
gas reserves is very complex, requiring significant subjective decisions in the
evaluation of available geologic, engineering and economic data for each
reservoir. The data for a given reservoir may change over time as a result of,
among other things, additional development activity, production history and
viability of production under varying economic conditions. Consequently,
material revisions to existing reserve estimates may occur in the future.
Although every reasonable effort is made to ensure that reserve estimates are
based on the most accurate and complete assemblage of information possible, the
significance of the subjective decisions required and variances in available
data for various reservoirs make these estimates generally less precise than
other estimates presented in connection with financial statement disclosures.
The Company's oil and gas reserves, shown below, all of which are located
in the continental United States (and which exclude certain oil and gas reserve
volumes and values which were sold in 1992), consist of proved developed and
undeveloped reserves which, based on subjective judgments, are estimated to be
recoverable in the future under existing economic and operating conditions.
The following table sets forth the changes in the Company's total proved
reserves for the years ended December 31, 1994, 1993 and 1992. The reserve
estimates for the Royalty Interests were prepared by Huddleston Engineering. All
other U.S. reserve estimates for the Company were prepared by Williamson
Petroleum Consultants, Inc. for 1992 and by Ryder Scott Company for 1993 and
1994. All three firms are independent petroleum engineering firms. During 1992,
the Company purchased reserves through STLP (see Note 3), with a portion of
these reserves being undeveloped.
The 1992 revisions of previous estimates of U.S. oil and gas reserves
reflect modest increases in oil and gas prices from 1991 to 1992 and small
decreases due to performance. Purchases in place reflect STLP's acquisition of
interests in a group of South Texas Properties during 1992.
During 1993, additional proved undeveloped reserves were assigned to STLP
as a result of development activities on these properties. Proved undeveloped
reserves were also added in 1993 for a new waterflood project in Lea County, New
Mexico. A portion of the proved undeveloped reserves from new waterflood
projects was moved to the proved developed reserve category in 1993 as a result
of a production response in one of the two projects during 1993. Reserves in
certain instances were revised downward as a result of lower oil prices
adversely affecting economic limits and also the reduced performance on some
projects.
During 1994, the acquisition of interests in the San Joaquin Basin
properties account for the reserve volumes purchased in 1994. Additional
development drilling work performed on the San Joaquin properties during the
last six months of 1994 has resulted in an extension of the proved undeveloped
reserve area and is reflected in the extension and discoveries. The improved
production performance of the properties has also resulted in an upward revision
of the proved reserves. Improved performance on certain Permian Basin
F-30
<PAGE> 137
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
properties has also resulted in an increase in reserves. The less than expected
performance of the South Texas gas properties and reduced gas prices at December
31, 1994 has resulted in downward revisions of the South Texas reserves.
Although gas prices were generally lower at December 31, 1994, as compared to
December 31, 1993, an increase in oil prices during the same period provided an
offset in revenue which prevented significant changes in economic limits for
various properties.
<TABLE>
<CAPTION>
OIL NGLS GAS
(BBLS) (BBLS) (MCF)
---------- --------- ----------
<S> <C> <C> <C>
Proved reserves
December 31, 1991....................................... 1,415,300 2,639,146
Revisions of previous estimates....................... (35,738) (110,478)
Extensions, discoveries and other additions........... -- --
Sales in place........................................ -- --
Purchases in place.................................... 79,467 4,620,595
Production............................................ (127,944) (557,846)
---------- ----------
December 31, 1992....................................... 1,331,085 6,591,417
Revisions of previous estimates....................... (512,883) (272,711)
Improved recovery..................................... 695,198 688,000
Extensions, discoveries and other additions........... 58,604 7,645,825
Sales in place........................................ (562) (249,202)
Purchases in place.................................... 334,685 4,750,447
Production............................................ (181,759) (1,984,820)
---------- ----------
December 31, 1993....................................... 1,724,368 17,168,956
Revisions of previous estimates....................... 1,697,742 -- 5,538,878
Improved recovery..................................... -- -- --
Extensions, discoveries and other additions........... 950,013 -- 5,356,714
Sales in place........................................ (2,411) -- (280,907)
Purchases in place.................................... 6,523,611 2,994,273 45,344,000
Production............................................ (311,831) (85,940) (3,325,641)
---------- --------- ----------
December 31, 1994....................................... 10,581,492 2,908,333 69,802,000
========== ========= ==========
Proved developed reserves -- December 31, 1992.......... 874,609 5,685,594
========== ==========
December 31, 1993....................................... 869,328 11,361,784
========== ==========
December 31, 1994....................................... 2,555,988 1,014,293 27,651,000
========== ========= ==========
</TABLE>
F-31
<PAGE> 138
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Standardized measures of discounted future net cash flows
The Company's standardized measure of discounted future net cash flows, and
changes therein, related to proved oil and gas reserves are as follows (amounts
in thousands):
<TABLE>
<CAPTION>
1994 1993 1992
--------- -------- --------
<S> <C> <C> <C>
Future cash inflow........................................ $ 375,585 $ 57,052 $ 36,177
Future production, development and abandonment costs...... (215,163) (22,662) (14,557)
--------- -------- --------
Future cash flows before income taxes..................... 160,422 34,390 21,620
Future income taxes....................................... (27,228) (4,747) (3,143)
--------- -------- --------
Future net cash flows..................................... 133,194 29,643 18,477
10 percent discount factor................................ (52,381) (11,835) (4,687)
--------- -------- --------
Standardized measure of discounted future net cash flow... $ 80,813 $ 17,808 $ 13,790
========= ======== ========
Primary changes in standardized measure of discounted
future net cash flows:
Sales of oil, gas and natural gas liquids, net of
production costs................................... $ (7,643) $ (4,194) $ (1,963)
Extensions, discoveries and other additions.......... 6,381 9,015 --
Revisions of estimates of reserves proved in prior
years:
Quantity estimated................................. 16,144 (3,070) (144)
Net changes in price and production costs.......... (6,446) (2,931) (861)
Accretion of discount................................ 2,098 1,693 969
Purchases of reserves in place....................... 57,001 6,406 5,894
Sales of reserves in place........................... (342) (238) --
Development costs incurred........................... (977) 2,854 36
Changes in future development costs.................. 790 (1,913) --
Net change in income taxes........................... (2,696) (2,442) 449
Changes in production rates (timing) and other....... (1,305) (1,162) --
--------- -------- --------
Net change...................................... $ 63,005 $ 4,018 $ 4,380
========= ======== ========
</TABLE>
Estimated future cash inflows are computed by applying year-end prices of
oil and gas to year-end quantities of proved reserves. Future price changes are
considered only to the extent provided by contractual arrangements. Estimated
future development and production costs are determined by estimating the
expenditures to be incurred in developing and producing the proved oil and gas
reserves at the end of the year, based on year-end costs and assuming
continuation of existing economic conditions. Estimated future income tax
expense is calculated by applying year-end statutory tax rates to estimated
future pretax net cash flows related to proved oil and gas reserves, less the
tax basis (including net operating loss carryforwards projected to be usable) of
the properties involved.
These estimates were determined in accordance with Statement of Financial
Accounting Standards No. 69. Because of unpredictable variances in expenses and
capital forecasts, crude oil and natural gas prices and the fact that the bases
for such volume estimates vary significantly, management believes the usefulness
of this data is limited. These estimates of future net cash flows do not
necessarily represent management's assessment of estimated fair market value,
future profitability or future cash flow to the Company. Management's investment
and operating decisions are based upon reserve estimates that include proved as
well as probable reserves and upon different price and cost assumptions from
those used herein.
F-32
<PAGE> 139
HARCOR ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The 1992 revisions of previous estimates of oil and gas reserves reflect
modest increases in oil and gas prices from 1991 to 1992 and small decreases due
to performance. Purchases in place reflect STLP's acquisition of interests in a
group of South Texas Properties during 1992.
The 1993 revisions of previous estimates of oil and gas reserves reflect
the significant decrease in oil prices from 1992 to 1993 and downward
adjustments due to performance on certain properties. The purchases in place of
oil and gas reserves reflect the acquisition of a larger interest in STLP and
the acquisition of interests in additional properties in Lea County, New Mexico.
Sales in place reflect the sale of two minor properties in STLP. Extensions and
discoveries are primarily a result of drilling activity on the STLP properties
during 1993. Improved recovery was primarily the result of projected recovery
from an additional secondary recovery project in Lea County, New Mexico. The
increased production rates in 1993 reflect a full year of production from
interests acquired in 1992 and production from additional property interests
acquired during 1993.
The 1994 revisions of the purchase of reserves in place reflect the
acquisition of the property interests in the San Joaquin Basin, California. The
extension and discoveries are a result of the extension of the proved
undeveloped area of the San Joaquin leases. The upward revisions are primarily a
result of improved performance on the San Joaquin properties which offset the
under performance of certain South Texas Properties. The sales of oil and gas
are significantly increased reflecting the production from the San Joaquin
properties purchased June 30, 1994.
The future cash flows presented in the "Standardized Measures of Discounted
Future Net Cash Flows" are based on contract prices for oil and gas for
contracted volumes over the contract period, as applicable, and year-end 1994
oil and gas prices for oil and gas volumes not covered under oil and gas
contracts. (See Note 10.)
F-33
<PAGE> 140
HARCOR ENERGY, INC.
CONSOLIDATED BALANCE SHEET
AS OF JUNE 30, 1995 (UNAUDITED)
ASSETS
<TABLE>
<CAPTION>
JUNE 30,
1995
-----------
<S> <C>
CURRENT ASSETS:
Cash and cash investments.................................................... $ 1,254,469
Accounts receivable.......................................................... 1,978,223
Prepaids and other........................................................... 297,758
-----------
Total current assets................................................. 3,530,450
-----------
PROPERTY AND EQUIPMENT, at cost, successful efforts method:
Unproved oil and gas properties.............................................. 7,414,113
Proved oil and gas properties:
Leasehold costs........................................................... 52,329,652
Lease and well equipment.................................................. 13,331,622
Intangible development costs.............................................. 5,521,039
Furniture and equipment...................................................... 247,243
-----------
78,843,669
Less -- accumulated depletion, depreciation and amortization................. (19,117,402)
-----------
Net property, plant and equipment............................................ 59,726,267
-----------
OTHER ASSETS................................................................... 3,511,353
-----------
$66,768,070
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current portion of long-term bank debt....................................... $ --
Subordinated Bridge Loan..................................................... --
Accounts payable and accrued liabilities..................................... 4,066,980
-----------
Total current liabilities............................................ 4,066,980
-----------
LONG-TERM BANK DEBT, net of current portion.................................... 39,340,000
-----------
OTHER LIABILITIES.............................................................. 54,723
-----------
COMMITMENTS AND CONTINGENCIES
REDEEMABLE SERIES D PREFERRED STOCK............................................ 8,949,022
-----------
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value -- 1,500,000 shares authorized; 65,000 shares
outstanding at June 30, 1995.............................................. 650
Common stock, $.10 par value -- 25,000,000 shares authorized; 7,531,207
shares outstanding at June 30, 1995....................................... 753,121
Additional paid-in capital................................................... 29,365,709
Accumulated deficit.......................................................... (15,762,135)
-----------
Total stockholders' equity........................................... 14,357,345
-----------
$66,768,070
===========
</TABLE>
The accompanying notes are an integral part
of these consolidated financial statements.
F-34
<PAGE> 141
HARCOR ENERGY, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE MONTHS ENDED
JUNE 30, 1995 AND 1994
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
JUNE 30,
--------------------------
1995 1994
---------- ----------
<S> <C> <C>
REVENUES:
Oil and gas revenues............................................. $3,372,518 $1,639,762
Gas plant operating and marketing revenues....................... 1,369,035 --
Interest income.................................................. 14,085 2,885
Other............................................................ 5,434 6,755
---------- ----------
4,761,072 1,649,402
---------- ----------
COSTS AND EXPENSES:
Production costs................................................. 1,263,559 488,470
Gas plant operating and marketing costs.......................... 796,775 --
Dry hole, impairment and abandonment costs....................... -- 10,480
Engineering and geological costs................................. 93,351 36,937
Depletion, depreciation and amortization......................... 1,096,615 691,156
General and administrative expenses.............................. 550,148 449,478
Interest expense................................................. 1,107,694 163,918
---------- ----------
4,908,142 1,840,439
---------- ----------
Loss before provision for income tax............................. (147,070) (191,037)
Provision for income taxes......................................... -- --
---------- ----------
Net loss........................................................... (147,070) (191,037)
Dividends on preferred stock....................................... (335,600) (70,000)
Accretion on Redeemable Preferred Stock............................ (84,005) --
---------- ----------
NET LOSS APPLICABLE TO COMMON STOCKHOLDERS......................... $ (566,675) $ (261,037)
========== ==========
NET LOSS PER COMMON SHARE.......................................... $ (0.08) $ (0.05)
========== ==========
</TABLE>
The accompanying notes are an integral part
of these consolidated financial statements.
F-35
<PAGE> 142
HARCOR ENERGY, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND 1994
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
---------------------------
1995 1994
----------- ----------
<S> <C> <C>
REVENUES:
Oil and gas revenues............................................ $ 7,055,827 $3,275,816
Gas plant operating and marketing revenues...................... 3,154,341 --
Interest income................................................. 20,918 5,478
Other........................................................... 13,716 13,103
----------- ----------
10,244,802 3,294,397
----------- ----------
COSTS AND EXPENSES:
Production costs................................................ 2,522,927 1,030,508
Gas plant operating and marketing costs......................... 2,207,124 --
Dry hole, impairment and abandonment costs...................... 3,719 10,480
Engineering and geological costs................................ 182,016 121,100
Depletion, depreciation and amortization........................ 2,442,862 1,324,095
General and administrative expenses............................. 1,216,048 986,363
Interest expense................................................ 2,237,690 303,723
Loss on partnership dissolution................................. -- 203,000
----------- ----------
10,812,386 3,979,269
----------- ----------
Loss before provision for income taxes and extraordinary item... (567,584) (684,872)
Provision for income taxes...................................... -- --
----------- ----------
Loss before extraordinary item.................................. (567,584) (684,872)
EXTRAORDINARY ITEM:
Loss on early extinguishment of debt............................ -- (122,193)
----------- ----------
Net loss........................................................ (567,584) (807,065)
Dividends on preferred stock...................................... (670,842) (140,000)
Accretion on Redeemable Preferred Stock........................... (164,991) --
----------- ----------
NET LOSS APPLICABLE TO COMMON SHAREHOLDERS........................ $(1,403,417) $ (947,065)
=========== ==========
NET LOSS PER COMMON SHARE BEFORE
EXTRAORDINARY ITEM.............................................. $ (0.19) $ (0.14)
=========== ==========
NET LOSS PER COMMON SHARE AFTER
EXTRAORDINARY ITEM.............................................. $ (0.19) $ (0.16)
=========== ==========
</TABLE>
The accompanying notes are an integral part
of these consolidated financial statements.
F-36
<PAGE> 143
HARCOR ENERGY, INC.
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
FOR THE SIX MONTHS ENDED JUNE 30, 1995
(UNAUDITED)
<TABLE>
<CAPTION>
COMMON STOCK PREFERRED STOCK ADDITIONAL
------------------- ---------------- PAID-IN ACCUMULATED
SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT
-------- -------- ------ ------ ---------- -----------
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1994..... 7,192,837 $719,284 67,500 $675 $29,827,989 $(15,194,551)
Conversion of Convertible
Preferred Stock.............. 64,100 6,410 (2,500) (25) (6,385) --
Issuance of common stock
pursuant to warrant
exchange..................... 182,500 18,250 -- -- (18,250) --
Issuance of common stock....... 75,000 7,500 -- -- 245,625 --
Issuance of common stock and
warrants pursuant to
preferred stock dividends.... 16,770 1,677 -- -- 152,563 --
Preferred stock dividends...... -- -- -- -- (670,842) --
Accretion on Series D Preferred
Stock........................ -- -- -- -- (164,991) --
Net loss for the six months
ended June 30, 1995.......... -- -- -- -- -- (567,584)
--------- -------- ------ ---- ----------- ------------
Balance, June 30, 1995......... 7,531,207 $753,121 65,000 $650 $29,365,709 $(15,762,135)
========= ======== ====== ==== =========== ============
</TABLE>
The accompanying notes are an integral part
of these consolidated financial statements.
F-37
<PAGE> 144
HARCOR ENERGY, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND 1994
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
--------------------------
1995 1994
---------- ------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Loss......................................................... $ (567,584) $ (807,065)
Adjustments to reconcile net loss to net cash provided
by operating activities:
Depletion, depreciation and amortization...................... 2,442,862 1,324,095
Dry hole, impairment and abandonment costs.................... 3,719 10,480
Amortization of deferred charges.............................. 225,012 --
Gain on sale of property and equipment........................ -- (2,626)
Engineering and geological costs................................. 182,016 121,100
Loss on partnership dissolution.................................. -- 203,000
Loss on early extinguishment of debt............................. -- 122,193
---------- ------------
2,286,025 971,177
Changes in working capital, net of effects of non-cash
transactions.................................................. (926,730) (433,508)
---------- ------------
Net cash provided by operating activities........................ 1,359,295 537,669
---------- ------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Engineering and geological costs................................. (182,016) (121,100)
Proceeds from sale of property and equipment..................... -- 2,626
Acquisitions of oil and gas properties........................... -- (42,113,358)
Other additions to property and equipment........................ (515,201) (1,127,505)
Other............................................................ (3,719) (10,480)
---------- ------------
Net cash used in investing activities............................ (700,936) (43,369,817)
---------- ------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from bridge loan........................................ -- 5,000,000
Proceeds from issuance of long-term debt......................... -- 29,283,681
Proceeds from issuance of Series D Preferred Stock............... -- 10,000,000
Proceeds from issuance of common stock........................... -- 3,353,467
Repayment of bank debt........................................... (60,000) (3,577,873)
Increase in other assets......................................... (91,767) (496,638)
Dividends on preferred stock..................................... (135,000) (70,000)
Decrease in other liabilities.................................... (16,321) (407,315)
---------- ------------
Net cash provided by (used in) financing activities.............. (303,088) 43,085,322
---------- ------------
Net increase in cash............................................. 355,271 253,174
Cash at beginning of period...................................... 899,198 2,161,512
---------- ------------
Cash at end of period............................................ $1,254,469 $ 2,414,686
========== ============
</TABLE>
The accompanying notes are an integral part
of these consolidated financial statements.
F-38
<PAGE> 145
HARCOR ENERGY, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE SIX MONTHS ENDED JUNE 30, 1995 AND 1994
(UNAUDITED)
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
(ALL DOLLAR AMOUNTS HAVE BEEN ROUNDED TO THE NEAREST THOUSAND) --
HarCor Energy, Inc. (the "Company") made interest payments of $1,176,000
and $147,000 during the six months ended June 30, 1995 and 1994, respectively.
SUPPLEMENTAL INFORMATION REGARDING NON-CASH INVESTING AND FINANCING
ACTIVITIES --
SIX MONTHS ENDED JUNE 30, 1995
During the six months ended June 30, 1995, the Company paid "in-kind"
dividends on its Series D Preferred Stock consisting of $476,000 in newly-issued
Series D Preferred Stock (4,759 shares). The Company also paid dividends on its
Convertible Series E Preferred Stock consisting of 16,770 in newly-issued
unregistered shares of the Company's common stock which were valued at $60,000.
In addition, the Company incurred an accretion charge of $165,000 on its Series
D Preferred Stock during the period. These dividend payments and accretion are
not reflected in financing activities.
Pursuant to the terms of its bridge loan facility, the Company issued to
its secured lender 75,000 shares of its common stock, which was ascribed a value
of $253,000 and recorded to deferred financing costs.
SUPPLEMENTAL INFORMATION REGARDING NON-CASH INVESTING AND FINANCING
ACTIVITIES --
SIX MONTHS ENDED JUNE 30, 1994
In connection with the dissolution of the South Texas Limited Partnership
in March 1994 and related property conveyance, the Company wrote off $203,000 of
its cost basis of the partnership, and expensed $122,000 reflecting a write-off
of deferred financing costs resulting from the early extinguishment of debt. The
charges for the dissolution and debt extinguishment are not reflected in
investing or financing activities.
As of June 30, 1994, the Company had declared dividends totaling $140,000
on its Series A, B and C Convertible Preferred Stock, $70,000 of which were
accrued and unpaid and not reflected in financing activities.
In connection with the purchase of certain oil and gas assets, the Company
issued to the sellers, as a portion of the consideration, 30,000 shares of its
Series E Preferred Stock with a face value of $3,000,000, 25,000 shares of
unregistered common stock with a value of approximately $81,000 and a warrant to
purchase 1,000,000 shares of the Company's common stock at $5.00 per share to
which the Company ascribed a value of $850,000. The acquisition value of the
assets acquired and corresponding additions to equity resulting from these
transactions are not reflected in investing or financing activities.
In connection with the amendment of the Company's credit agreement to
partially finance the above acquisition, the Company issued to the financial
institutions involved warrants to purchase 250,000 shares of the Company's
common stock at $4.75 per share to which the Company ascribed a value of
$230,000. The deferred financing cost and addition to equity resulting from this
transaction are not reflected in financing activities.
As of June 30, 1994, the Company had accrued but unpaid acquisition costs
of $167,000 and financing costs of $670,000 in connection with the above
referenced purchase of assets, $122,000 in developmental drilling costs and
$163,000 in other deferred financing costs. The additions to property and
equipment and deferred financing costs resulting from these transactions are not
reflected in investing and financing activities.
The above transactions resulted in non-cash net additions to property and
equipment totaling $4,099,000 for the six months ended June 30, 1994.
The accompanying notes are an integral part
of these consolidated financial statements.
F-39
<PAGE> 146
HARCOR ENERGY, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 1995
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation --
The accompanying consolidated financial statements for the six months ended
June 30, 1994 include the accounts and results of HarCor Energy, Inc.
("HarCor"), its wholly-owned subsidiaries, Warrior, Inc. ("Warrior") and HTAC
Investments, Inc. ("HTACI"); HarCor's 37.875% general partner share of the
assets, liabilities, revenues and costs and expenses of South Texas Limited
Partnership ("STLP") or, after STLP's dissolution in March 1994, HarCor's direct
working interests in the STLP properties ("South Texas Properties"); and
HarCor's interest in certain oil and gas assets located in Kern County,
California acquired on June 30, 1994 (the "Bakersfield Properties").
The accompanying consolidated financial statements for the six months ended
June 30, 1995 include the accounts and results of HarCor, Warrior and HTACI;
HarCor's direct working interests in the South Texas Properties; and HarCor's
interest in the Bakersfield Properties; (collectively, the "Company" or "HarCor"
unless the context specifies otherwise).
The consolidated financial statements included herein have been prepared by
the Company, without audit, pursuant to the rules and regulations of the
Securities and Exchange Commission. Certain information and footnote disclosures
normally included in financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted pursuant to such
rules and regulations. The Company believes, however, that it has made adequate
disclosures so that the information presented herein is not misleading.
A summary of the Company's significant accounting policies is included in
the consolidated financial statements and notes thereto, contained in its Annual
Report on Form 10-K for the year ended December 31, 1994 (the "10-K"). The
unaudited consolidated financial data presented herein should be read in
conjunction with the 10-K.
In the opinion of the Company, the unaudited consolidated financial
statements contained herein include all adjustments (consisting of normal
recurring accruals and the elimination of intercompany transactions) necessary
to present fairly the Company's consolidated results of operations, cash flows
and changes in stockholders' equity for the periods ended June 30, 1995 and
1994.
The results of operations for an interim period are not necessarily
indicative of the results to be expected for a full year.
New Accounting Standard --
The Company intends to adopt during 1995 Statement of Financial Accounting
Standards No. 121 (Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to be Disposed of ("SFAS 121")). SFAS 121 will require the
Company to review its oil and gas properties whenever events or changes in
circumstances indicate that the carrying amount of such assets may not be
recoverable. If the carrying amount of any of the Company's oil and gas
properties (determined on a field-by-field basis) is greater than its projected
undiscounted future cash flow, an impairment loss is recognized. The Company is
currently evaluating what impact, if any, SFAS 121 may have.
Net Loss Per Common Share --
Net loss per common share was calculated by dividing the appropriate net
loss, after considering preferred stock dividends, by the weighted average
number of common shares outstanding during each period. Outstanding stock
options, warrants and convertible preferred shares were not included in the
calculations, since their effect was antidilutive. The weighted average number
of outstanding common shares utilized in the
F-40
<PAGE> 147
HARCOR ENERGY, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
calculations was 7,324,000 and 5,752,000 for the three months ended June 30,
1995 and 1994, respectively, and 7,275,000 and 5,744,000 for the six months
ended June 30, 1995 and 1994, respectively.
Prior Year Reclassification --
Certain prior year amounts have been reclassified to conform with the
current year presentation.
(2) ACQUISITION OF BAKERSFIELD PROPERTIES
On June 30, 1994, the Company acquired, for approximately $46 million, a
75% interest in substantially all of the oil and gas properties, a natural gas
processing plant and gathering lines owned by Bakersfield Energy Resources, Inc.
and its affiliates ("BER"). BER has remained the operator of the properties and
plant acquired by the Company.
The following table presents the unaudited pro forma condensed consolidated
statements of operations for the six months ended June 30, 1994, assuming the
acquisition of the Bakersfield Properties and the related financings had
occurred at January 1, 1994 (amounts are in thousands except per share data):
<TABLE>
<S> <C>
Total revenues............................................................. $ 9,643
Net loss attributable to common stockholders............................... $(1,097)
=======
Net loss per common share.................................................. $ (0.15)
=======
</TABLE>
(3) SUBORDINATED BRIDGE LOAN
In connection with the acquisition of the Bakersfield Properties, the
Company entered into a $5 million bridge loan facility (the "Bridge Loan") with
Internationale Nederlanden (U.S.) Capital Corp. ("ING Capital"). Outstanding
advances under the Bridge Loan bore interest at a floating rate of, at the
Company's option, prime plus 2% or LIBOR plus 4% per annum until September 30,
1994 and escalating by (i) .75% per annum from October 1, 1994 through January
31, 1995 and (ii) 1.5% per annum at all times after January 31, 1995.
As a further condition to the Bridge Loan, the Company was required to
issue to ING Capital shares of its common stock on certain dates following
January 1, 1995 if the Bridge Loan had not been paid by in full by that date.
Pursuant to this requirement, the Company has issued 75,000 shares of its common
stock to ING Capital as of June 30, 1995.
In July 1995, the Company refinanced the Bridge Loan with proceeds from a
long-term refinancing of its debt. (See Note 7.)
(4) LONG-TERM DEBT
Effective upon the closing of the acquisition of the Bakersfield
Properties, the Company amended its credit facility with ING Capital (the
"Amended Credit Agreement") to provide for a total commitment of $34.4 million.
Outstanding advances under the Amended Credit Agreement bore interest at a
floating rate of, at the Company's option, prime plus 1% or LIBOR plus 3% per
annum. There was $34.3 million outstanding under this credit facility at June
30, 1995.
In July 1995, the Company repaid the total $34.3 million outstanding under
the Amended Credit Agreement with proceeds resulting from a long-term
refinancing of its debt. Deferred financing costs of approximately $1.5 million
will be charged to expense as an extraordinary item in the third quarter of
1995. (See Note 7.)
F-41
<PAGE> 148
HARCOR ENERGY, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(5) COMMITMENTS AND CONTINGENCIES -- RISK MANAGEMENT AND HEDGING ACTIVITIES
The Company has a contract with an affiliate of ING Capital to hedge 8,000
barrels of oil per month from February 1994 to August 1996, which provides for a
"ceiling" price of $18.75 per barrel and a "floor" price of $15.80 per barrel.
Pursuant to such contract, if the NYMEX price of light, sweet crude oil is lower
than $15.80, then the Company is paid the difference between the NYMEX price and
$15.80 for each barrel hedged; and, if the NYMEX price is higher than $18.75,
then the Company pays the difference between the NYMEX price and $18.75 for each
barrel hedged.
The Company has entered into another contract with the referenced ING
affiliate to hedge (i) 300 barrels of oil per day from May 1995 to April 1996
and (ii) 250 barrels per day from May 1996 to April 1997. The hedge provides for
a fixed price of $18.505 per barrel. Gains or losses under the above agreements
are recorded in oil revenues in periods in which the hedged production occurs
and such agreements are settled on a monthly basis.
The Company has a gas sales contract with Washington Energy Marketing, Inc.
("WEM"), a subsidiary of Cabot Oil and Gas Corporation, under which the Company
receives approximately $1.80 per one million British thermal units, which is the
heat required to raise the temperature of a one-pound mass of water from 58.5 to
59.5 degrees fahrenheit ("MMBtu") at the wellhead for all of its gas produced up
to an agreed level of production in each field of the South Texas Properties (up
to a maximum of approximately 3,031 MMBtu per day, net to the Company's
interest, in the aggregate for all such fields in 1995) through October 1995.
The gas sales contract was amended in September 1993 to provide a "floor" price
of $2.05 per MMBtu for certain volumes from January 1995 through December 1995.
Beginning in January 1995, Cabot has not paid the $1.80 per MMBtu price for
volumes of gas delivered pursuant to the gas sales contract, but rather has paid
the spot market price for such gas because Cabot claims that, as a result of the
dissolution of STLP, the gas sales contract was cancelled effective December 31,
1994. In March 1995, the Company filed a lawsuit against Cabot to enforce the
terms of the gas sales contract because the Company believes that such contract
was assigned to the Company as part of the dissolution of STLP and, therefore,
is still in effect. Although the Company believes that it will recover the
amounts owed by Cabot and the court will enforce the terms of the gas sales
contract, the Company cannot predict the outcome of such lawsuit.
Pursuant to the terms of its credit facility, the Company entered into a
hedging contract covering 75% of its projected proved developed producing oil
production from the Bakersfield Properties until June 30, 1997 at a reference
price of $17.25 per barrel. Pursuant to such hedge contract, the Company pays
half of the difference between $17.25 and the index price (the NYMEX price for
light, sweet crude oil) if the index price is higher than $17.25; and the
Company receives the difference between $17.25 and the index price if the index
price is lower than $17.25, as determined on a monthly basis. The Company
entered into a gas sales contract covering the gas production from the
Bakersfield Properties pursuant to which the Company will receive (i) $1.985 per
MMBtu for the delivery of 3,750 MMBtu of gas per day from October 1, 1994 to
September 30, 1995; (ii) $2.0297 per MMBtu for the delivery of 3,000 MMBtu of
gas per day from October 1, 1995 to September 30, 1996 and (iii) $2.0753 per
MMBtu for the delivery of 2,500 MMBtu of gas per day from October 1, 1996 to
September 30, 1997.
The Company has entered into a firm gas sales contract for 3,750 MMBtu/day
delivered into the SoCal Pipeline System. The term of the contract is one year,
commencing December 1, 1994 and ending November 30, 1995. The composite average
price received by the Company for the gas sold is $1.81/MMBtu. The Company also
entered into a firm gas sales contract commencing December 1, 1995 and ending
November 30, 1997 for the sale of 3,000 MMBtu per day at an effective price of
$1.70 per MMBtu. In July of 1995, the Company entered into an additional
contract commencing December 1, 1995 and ending June 1, 1997 for the sale of
3,000 MMBtu per day at a price per MMBtu of $.16 less than the NYMEX gas futures
F-42
<PAGE> 149
HARCOR ENERGY, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
price for the applicable month. The term of this contract may be extended to
November 30, 1997, at the option of the gas buyer.
(6) STOCKHOLDERS' EQUITY
Common Stock --
As a condition to the Bridge Loan, the Company had issued to ING Capital an
aggregate of 75,000 shares of its common stock through June 30, 1995, and the
Company recorded $253,000 of deferred financing costs.
In April 1995, holders of 2,500 shares of Series B Preferred Stock
converted their shares into 64,100 common shares of the Company.
Preferred Stock Dividends --
The Company has paid dividends on preferred stocks for the six-month
periods ended June 30, 1995 and 1994 as follows:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
-------------------
PREFERRED STOCK 1995 1994
----------------------------------------------------------------- -------- --------
<S> <C> <C>
8% Convertible (Series A, B, C).................................. $135,000 $140,000
9% Redeemable Series D........................................... 475,842 --
4%/9% Convertible Series E....................................... 60,000 --
-------- --------
$670,842 $140,000
======== ========
</TABLE>
Dividends on the 8% Series A, Series B and Series C Preferred Stock were
paid in cash for both periods indicated.
Dividends on the 9% Series D Preferred Stock were paid, at the option of
the Company, in additional shares of Series D Preferred Stock which included
detachable warrants to purchase 102,369 shares of the Company's common stock.
In addition to the initial issuance of 2,305,263 detachable warrants to the
holders of the Series D Preferred Stock ("Series D Holders") in June 1994 and
the warrants issued pursuant to Series D dividends as described above, the
Company has issued 1,017,034 detachable warrants related to certain dilution
adjustments pursuant to the terms of the Series D Preferred Stock. These
dilution adjustments also resulted in a decrease in the exercise price of all of
the warrants issued to the Series D Holders from an initial exercise price of
$4.75 per share to $3.67 per share of common stock effective June 30, 1995. The
Series D Preferred Stock has subsequently been redeemed and the related warrants
have been exchanged for common stock. (See Note 7.)
Dividends on the Series E Preferred Stock were paid, at the option of the
Company, in 16,770 shares of common stock of the Company in lieu of cash. The
coupon rate on the Series E increases from 4% per annum to 9% per annum
effective July 1, 1995.
Warrant Exchanges --
In May 1995, BER exchanged its warrant to purchase 1,000,000 shares of the
Company's common stock at $5.00 per share for 182,500 unregistered shares of the
Company's common stock. The Company had ascribed a value of $850,000 to the
warrant upon its original issuance and has ascribed the same value to the common
stock issued in this exchange.
F-43
<PAGE> 150
HARCOR ENERGY, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In July 1995, in connection with a refinancing of the Company's debt (see
Note 7), the Company and the Series D Holders entered into an agreement pursuant
to which the Series D Holders exchanged their warrants to purchase shares of
common stock for unregistered common stock of the Company. The Series D Holders
had warrants to purchase 3,424,666 shares of common stock at an exercise price
of $3.67 per share at the time of the exchange. Pursuant to the agreement, the
Series D Holders exchanged all of their warrants for 1,100,000 unregistered
common shares of common stock of the Company. This exchange agreement also
contained certain conditions including certain appreciation rights to the Series
D Holders effective during a two-year period following the exchange in the event
of a sale of the Company or its assets and certain registration rights to the
Series D Holders.
(7) SUBSEQUENT EVENT -- SENIOR SECURED NOTE OFFERING
Sale of Units --
On July 24, 1995, the Company consummated the sale (the "Note Offering") of
65,000 Units (the "Units") consisting of $65 million aggregate principal amount
of its 14 7/8% Senior Notes due in the year 2002 (the "Notes") and 1,430,000
warrants to purchase an equal number of shares of common stock. Each Unit
consists of a $1,000 principal amount Note and 22 warrants to purchase an equal
number of shares of common stock. The Notes and warrants became separately
transferrable immediately after July 24, 1995.
Use of Proceeds --
The net proceeds to the Company from the offering of Units was
approximately $61.6 million after deducting discounts and estimated offering
expenses payable by the Company. The Company immediately used a portion of the
net proceeds to (i) repay $34.3 million outstanding under its Amended Credit
Agreement with ING Capital and repay $5 million outstanding under the Bridge
Loan with ING, (ii) redeem $10.9 million in outstanding shares of Series D
Preferred Stock and (iii) acquire interests in certain oil and gas wells
associated with the Bakersfield Properties (the "Carried Interests Wells") for
$2.3 million. The Company intends to use the balance of the proceeds from the
Note Offering to finance a portion of the development of the Bakersfield
Properties over the remainder of the year.
Concurrent with the repayment of its outstanding bank debt, the Company
entered into a new credit agreement with ING Capital, providing for a total
credit facility of $15 million, $10 million of which is initially available.
(See "New Credit Agreement," which follows.)
The Notes --
The Notes bear interest at the rate of 14 7/8% per annum. Interest accrues
from the date of issue and will be payable semi-annually on January 15 and July
15 of each year, commencing on January 15, 1996. The Notes are redeemable, in
whole or in part, at the option of the Company at any time on or after July 15,
1999, at the following redemption prices (expressed as percentages of the
principal amount) if redeemed during the 12-month period commencing on July 15
of the year set forth below plus, in each case, accrued interest thereon to the
date of redemption:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
------------------- ----------
<S> <C>
1999....................................................... 110%
2000....................................................... 107%
2001 and thereafter........................................ 100%
</TABLE>
The Notes are issued pursuant to an indenture, dated July 24, 1995, between
the Company and Texas Commerce Bank National Association, as Trustee (the
"Indenture"). All of the obligations of the Company
F-44
<PAGE> 151
HARCOR ENERGY, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
under the Notes and the Indenture are secured by a second priority lien on
substantially all of the assets of the Company and its subsidiaries securing its
bank debt.
The Warrants --
Each warrant entitles the holder thereof to purchase one share of common
stock at an exercise price of $3.85 per share. The warrants are exercisable at
any time on or after July 24, 1996 and expire at the close of business on July
24, 2000. Holders of the warrants have certain demand and piggy-back rights to
cause the Company to register the shares of common stock issuable thereunder.
Such shares of common stock collectively represent approximately 10% of the
common stock of the Company on a fully diluted basis (after taking into account
the conversion or exercise of all existing options, warrants and other
convertible securities).
Placement of Units --
Subject to the terms of the Purchase Agreement dated July 17, 1995 (the
"Purchase Agreement"), the Company sold the Units to BT Securities Corporation
and Internationale Nederlanden (U.S.) Securities Corporation (the "Initial
Purchasers"). As part of the compensation to the Initial Purchasers in
connection with the offering of the Units, the Company issued to the Initial
Purchasers (i) additional warrants to purchase 350,000 shares of common stock at
an initial exercise price of $3.85 per share and (ii) warrants to purchase
150,000 shares of the Company's Series F Preferred Stock at an initial exercise
price of $3.85 per share. Each share of Series F Preferred Stock is convertible
into one share of common stock. The additional warrants issued as such
compensation have substantially the same terms as the warrants.
Equity Proceeds Offer and Redemption --
In the event the Company completes an offering for the sale of $5 million
or more of its equity securities on or prior to July 15, 1997 ("Equity
Offering"), then following such Equity Offering, the Company must make an offer
to purchase from all the holders of the Notes (on a date not later than the 90th
day after the date of the consummation of such Equity Offering) at a purchase
price equal to 110% of the aggregate principal amount of Notes to be
repurchased, plus accrued and unpaid interest thereon, an aggregate principal
amount of Notes equal to the lesser of (i) the maximum principal amount of Notes
such that 60% of the aggregate principal amount of Notes originally issued
remains outstanding after completion of the offer or (ii) the maximum principal
amount of the Notes which could be purchased with 50% of the amount of net
proceeds received or receivable by the Company from such Equity Offering.
On or prior to July 15, 1997, the Company may, at its option, redeem Notes
with the net proceeds remaining following an Equity Proceeds Offer at a price
equal to 110% of their aggregate principal amount plus accrued and unpaid
interest thereon, if any, to the date of redemption; provided, however, that at
least 60% of the aggregate principal amount of Notes originally issued must
remain outstanding after any such redemption.
Excess Cash Flow Offer --
In the event that the Company has excess cash flow (as defined) in excess
of $2 million in any fiscal year, beginning with the fiscal year ending December
31, 1996, the Company will be required to make an offer to purchase Notes from
all Holders in an amount equal to 50% of all such excess cash flow for such
fiscal year (not just the amount in excess of $2 million) at a purchase price
equal to 101% of the principal amount thereof, plus accrued and unpaid interest
thereon ("Excess Cash Flow Offer"). The Company may credit the principal amount
of Notes acquired in the open market and retired prior to the Excess Cash Flow
Offer against such required Excess Cash Flow Offer, provided that each Note may
only be so credited once. Excess
F-45
<PAGE> 152
HARCOR ENERGY, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
cash flow for this purpose is generally defined as net cash flow provided by
operations less capital expenditures and payments on scheduled indebtedness.
New Credit Agreement --
Concurrent with the closing of the Note Offering in July 1995, the Company
repaid all borrowings under the Amended Credit Agreement and entered into a new
credit agreement with ING Capital (the "New Credit Agreement").
The New Credit Agreement provides that the Company initially may borrow up
to $10 million on a revolving credit basis. The New Credit Agreement will
convert to a term loan on January 31, 1996, with a set amortization schedule and
will have a final maturity date of December 31, 1998.
Availability under the New Credit Agreement is limited to a "borrowing
base" amount. The borrowing base will be determined semi-annually by ING
Capital, at its sole discretion, and may be established at an amount up to $15
million. Initially, the borrowing base is set at $10 million and ING Capital
will have no obligation to increase the borrowing base above this amount.
Availability under the New Credit Agreement will terminate on January 31, 1996,
at which time amounts outstanding under the New Credit Agreement will convert to
a term loan. Amounts advanced under the New Credit Agreement will bear interest
at an adjusted Eurodollar rate plus 2.50%.
The New Credit Agreement contains restrictive covenants which impose
limitations on the Company and its subsidiaries with respect to, among other
things: (i) the maintenance of current assets equal to at least 100% of current
liabilities, (ii) the maintenance of a minimum tangible net worth, (iii) the
incurrence of indebtedness (with exceptions for the Notes and the New Credit
Agreement and certain other limited exceptions), (iv) dividends and similar
payments (except dividends on Series A, B and C Preferred Stock of up to
$30,000), (v) the creation of additional liens on, or the sale of, the Company's
oil and gas properties and other assets, (vi) the Company's ability to enter
into hedging transactions, (vii) mergers or consolidations, (viii) investments
outside the ordinary course of business and (ix) transactions with affiliates.
All indebtedness of the Company under the New Credit Agreement is
guaranteed by the Company's two subsidiaries and is secured by a first lien upon
substantially all of the Company's oil and gas properties as well as by a pledge
of all of the capital stock of the Company's subsidiaries and the accounts
receivable, inventory, general intangibles, machinery and equipment and other
assets of the Company. All assets not subject to a lien in favor of the lender
are subject to a negative pledge, with certain exceptions.
F-46
<PAGE> 153
ANNEX A
[RYDER SCOTT COMPANY LETTERHEAD]
March 17, 1995
HarCor Energy, Inc.
Five Post Oak Park, Suite 2220
Houston, Texas 77027-3413
Gentlemen:
The estimated reserve volumes and future income amounts presented in
this report are related to hydrocarbon prices. December 1994 hydrocarbon prices
were used in the preparation of this report as required by Securities and
Exchange Commission (SEC) and Financial Accounting Standards Bulletin No. 69
(FASB 69) guidelines; however, actual future prices may vary significantly from
December 1994 prices. Therefore, volumes of reserves actually recovered and
amounts of income actually received may differ significantly from the estimated
quantities presented in this report.
The Company's reserves are located in the states of Alabama,
California, Louisiana, Michigan, New Mexico, Oklahoma, Texas and Wyoming. Our
estimates of the net proved reserves attributable to the interests of HarCor
Energy, Inc. (referred to herein as the Company) as of December 31, 1994 are
presented below:
<TABLE>
<CAPTION>
Proved Net Reserves
As of December 31, 1994
--------------------------------------
Liquid, Barrels Gas, MMCF
--------------- ---------
<S> <C> <C>
Developed and Undeveloped 13,424,691 68,537
Developed 3,505,147 26,386
</TABLE>
The "Liquid" reserves shown above are comprised of crude oil,
condensate, and natural gas liquids. Natural gas liquids comprise 28.9 percent
of the Company's developed liquid reserves and 21.7 percent of the Company's
developed and undeveloped liquid reserves. These natural gas liquids are
attributable to the Company's ownership in the Lost Hills Gas Plant in Kern
County, California. All hydrocarbon liquid reserves are expressed in standard
42 gallon barrels. All gas volumes are sales gas expressed in MMCF at the
pressure and temperature bases of the area where the gas reserves are located.
The proved reserves presented in this report comply with the SEC's
Regulation S-X Part 210.4-10 Sec. (a) as clarified by subsequent Commission
Staff Accounting Bulletins, and are based on the following definitions and
criteria:
A-1
<PAGE> 154
Proved reserves of crude oil, condensate, natural gas, and natural gas
liquids are estimated quantities that geological and engineering data
demonstrate with reasonable certainty to be recoverable in the future from
known reservoirs under existing conditions. Reservoirs are considered proved if
economic producibility is supported by actual production or formation tests. In
certain instances, proved reserves are assigned on the basis of a combination
of core analysis and electrical and other type logs which indicate the
reservoirs are analogous to reservoirs in the same field which are producing or
have demonstrated the ability to produce on a formation test. The area of a
reservoir considered proved includes (1) that portion delineated by drilling
and defined by fluid contacts, if any, and (2) the adjoining portions not yet
drilled that can be reasonably judged as economically productive on the basis
of available geological and engineering data. In the absence of data on fluid
contacts, the lowest known structural occurrence of hydrocarbons controls the
lower proved limit of the reservoir. Proved reserves are estimates of
hydrocarbons to be recovered from a given March 17, 1995 forward. They may be
revised as hydrocarbons are produced and additional data become available.
Proved natural gas reserves are comprised of non-associated, associated, and
dissolved gas. An appropriate reduction in gas reserves has been made for the
expected removal of natural gas liquids, for lease and plant fuel, and the
exclusion of non-hydrocarbon gases if they occur in significant quantities and
are removed prior to sale. Reserves that can be produced economically through
the application of improved recovery techniques are included in the proved
classification when these qualifications are met (1) successful testing by a
pilot project or the operation of an installed program in the reservoir
provides support for the engineering analysis on which the project or program
was based, and (2) it is reasonably certain the project will proceed. Improved
recovery includes all methods for supplementing natural reservoir forces and
energy, or otherwise increasing ultimate recovery from a reservoir, including
(1) pressure maintenance, (2) cycling, and (3) secondary recovery in its
original sense. Improved recovery also includes the enhanced recovery methods
of thermal, chemical flooding, and the use of miscible and immiscible
displacement fluids. Estimates of proved reserves do not include crude oil,
natural gas, or natural gas liquids being held in underground storage.
Depending on the status of development, these proved reserves are further
subdivided into:
(i) "developed reserves" which are those proved reserves
reasonably expected to be recovered through existing wells with
existing equipment and operating methods, including (a) "developed
producing reserves" which are those proved developed reserves
reasonably expected to be produced from existing completion intervals
now open for production in existing wells, and (b) "developed
non-producing reserves" which are those proved developed reserves
which exist behind the casing of existing wells which are reasonably
expected to be produced through these wells in the predictable future
where the cost of making such hydrocarbons available for production
should be relatively small compared to the cost of a new well; and
(ii) "undeveloped reserves" which are those proved reserves
reasonably expected to be recovered from new wells on undrilled
acreage, from existing wells where a relatively large expenditure is
required, and from acreage for which an application of fluid injection
or other improved recovery technique is contemplated where the
technique has been proved effective by actual tests in the area in the
same reservoir. Reserves from undrilled acreage are limited to those
drilling units offsetting productive units that are reasonably certain
of production when drilled. Proved reserves for other undrilled units
are included only where it can be demonstrated with reasonable
certainty that there is continuity of production from the existing
productive formation.
A-2
<PAGE> 155
Because of the direct relationship between volumes of proved
undeveloped reserves and development plans, we include in the proved
undeveloped category only reserves assigned to undeveloped locations that we
have been assured will definitely be drilled and reserves assigned to the
undeveloped portions of secondary projects which we have been assured will
definitely be developed.
The Company has interests in certain tracts which have substantial
additional hydrocarbon quantities which cannot be classified as proved and
consequently are not included herein. The Company has active exploratory and
development drilling programs which may result in the reclassification of
significant additional volumes to the proved category.
Our estimates of future cash inflows, future costs, and future net
cash inflows before income tax as of December 31, 1994 from this report are
presented as follows.
<TABLE>
<CAPTION>
As of December 31, 1994
-----------------------
<S> <C>
Future Cash Inflows $373,463,156
Future Costs
Production $158,091,431
Development 56,221,470
------------
Total Costs $214,312,901
Future Net Cash Inflows
Before Income Tax $159,150,255
Present Value at 10%
Before Income Tax $ 85,643,366
</TABLE>
The future cash inflows are gross revenues before any deductions and
include $5,811,890 attributable to the Company's ownership in the Lost Hills
Gas Plant in Kern County, California, from processing third party gas. The
production costs were based on current data and include production taxes and
ad valorem taxes in addition to the operating costs directly applicable to the
individual leases or wells. The development costs were based on current data.
The Company furnished us with gas prices in effect at December 31,
1994 and with its forecasts of future gas prices which take into account SEC
guidelines, current market prices, contract prices, and fixed and determinable
price escalations where applicable. In accordance with SEC guidelines, the
future gas prices used in this report make no allowances for future gas price
increases which may occur as a result of inflation nor do they account for
seasonal variations in gas prices which may cause future yearly average gas
prices to be different than December gas prices. For gas sold under contract
the contract gas price including fixed and determinable escalations exclusive
of inflation adjustments, was used until the contract expires and then was
adjusted to the current market price for the area and held at this adjusted
price to depletion of the reserves.
A-3
<PAGE> 156
The Company furnished us with liquid prices in effect at December 31,
1994 and these prices were held constant to depletion of the properties. In
accordance with SEC guidelines, changes in liquid prices subsequent to December
31, 1994 were not considered in this report.
Operating costs for the leases and wells in this report were based on
the operating expense reports of the Company and include only those costs
directly applicable to the leases or wells. When applicable, the operating
costs include a portion of general and administrative costs allocated directly
to the leases and wells under terms of operating agreements. Development costs
were furnished to us by the Company and are based on authorizations for
expenditure for the proposed work or actual costs for similar projects. The
current operating and development costs were held constant throughout the life
of the properties. This study did not consider the salvage value of the lease
equipment or the abandonment cost since both are relatively insignificant and
tend to offset each other. No deduction was made for indirect costs such as
general administration and overhead expenses, loan repayments, interest
expenses, and exploration and development prepayments. We have included gas
imbalances for those properties located in South Texas. No attempt was made to
quantify or otherwise account for any accumulated gas production imbalances
that may exist in any other areas.
The estimates of reserves presented herein are based upon a detailed
study of the properties in which the Company owns an interest; however, we have
not made any field examination of the properties. No consideration was given in
this report to potential environmental liabilities which may exist nor were any
costs included for potential liability to restore and clean up damages, if any,
caused by past operating practices. The Company has informed us that they have
furnished us all of the accounts, records, geological and engineering data and
reports, and other data required for this investigation. The ownership
interests, prices, and other factual data furnished by the Company were
accepted without independent verification. The estimates presented in this
report are based on data available through December 1994.
The reserves included in this report are estimates only and should not
be construed as being exact quantities. They may or may not be actually
recovered, and if recovered, the revenues therefrom and the actual costs
related thereto could be more or less than the estimated amounts. Moreover,
estimates of reserves may increase or decrease as a result of future
operations.
In general, we estimate that future gas production rates will continue
to be the same as the average rate for the latest available 12 months of actual
production until such time that the well or wells are incapable of producing at
this rate. The well or wells were then projected to decline at their decreasing
delivery capacity rate. Our general policy on estimates of future gas
production rates is adjusted when necessary to reflect actual gas market
conditions in specific cases. The future production rates from wells now on
production may be more or less than estimated because of changes in market
demand or allowables set by regulatory bodies. Wells or locations which are not
currently producing may start producing earlier or later than anticipated in
our estimates of their future production rates.
While it may reasonably be anticipated that the future prices received
for the sale of production and the operating costs and other costs relating to
such production may also increase or decrease from existing levels, such
changes were, in accordance with rules adopted by the SEC, omitted from
consideration in making this evaluation.
A-4
<PAGE> 157
Neither we nor any of our employees have any interest in the subject
properties and neither the employment to make this study nor the compensation
is contingent on our estimates of reserves and future cash inflows for the
subject properties.
Very truly yours,
RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
/s/ C. PATRICK MCINTURFF
C. Patrick McInturff, P.E.
Petroleum Engineer
CPM/sw
Approved:
/s/ FRED W. ZIEHE
Fred W. Ziehe, P.E.
Group Vice President
A-5
<PAGE> 158
- ------------------------------------------------------
- ------------------------------------------------------
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATIONS IN CONNECTION WITH THE OFFER CONTAINED
HEREIN OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL
OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITY OTHER THAN THOSE TO WHICH IT
RELATES NOR DOES IT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER
TO BUY, TO ANY PERSON IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS
NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE 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 HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. i
Summary............................... 1
Risk Factors.......................... 11
Purpose of the Exchange Offer......... 20
The Exchange Offer.................... 21
Use of Proceeds....................... 28
Capitalization........................ 29
Pro Forma Financial Data.............. 30
Selected Financial Data............... 36
Management's Discussion and Analysis
of Financial Condition and Results
of Operations....................... 37
Business and Properties............... 47
Management............................ 57
Security Ownership of Certain
Beneficial Owners and Management.... 63
Transactions with Related Parties..... 65
Description of Notes.................. 66
Description of New Credit Facility.... 94
Certain Federal Income Tax
Considerations...................... 95
Legal Matters......................... 100
Experts............................... 100
Engineers............................. 100
Glossary of Oil and Gas Terms......... 101
Index to Consolidated Financial
Statements.......................... F-1
Summary Report of Ryder Scott
Company............................. A-1
</TABLE>
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
------------------------------------------
PROSPECTUS
-----------------------------------------
LOGO
HARCOR ENERGY, INC.
$65,000,000
14 7/8% SENIOR SECURED NOTES DUE 2002, SERIES B
, 1995
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 159
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VI of the Company's Certificate of Incorporation ("Article VI")
states that directors of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director, provided, however, that Article VI does not eliminate or limit the
liability of a director (i) for any breach of his duty of loyalty to the Company
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of the law, (iii) under
Section 174 of the General Corporation Law of the State of Delaware ("Delaware
GCL"), or (iv) for any transaction from which the director derived an improper
personal benefit.
Under the Delaware GCL, Article VI would protect the Company's directors
against monetary damages for breaches of their duty of care, except as set forth
below. The inclusion of Article VI in the Company's Certificate of Incorporation
means that the Company and its stockholders would forego the ability to bring a
cause of action against a director for monetary damages for certain breaches of
fiduciary duty, including actions in connection with proposals for the
acquisition of control of the Company. Directors remain liable for breaches of
their duty of loyalty to the Company and its stockholders as well as acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law and transactions from which a director derives improper
personal benefit. Also, Article VI does not eliminate director liability under
Section 174 of the Delaware GCL, which makes directors personally liable for
unlawful dividends or unlawful stock repurchases or redemptions and expressly
sets forth a negligence standard with respect to such liability.
Although Article VI provides directors with protection from awards of
monetary damages for breaches of the duty of care, it does not eliminate the
directors' duty of care. Accordingly, Article VI will have no effect on the
availability of equitable remedies such as an injunction or rescission based
upon a director's breach of the duty of care. The provisions of Article VI which
eliminate liability as described above will apply to officers of the Company
only if they are directors of the Company and are acting in their capacity as
directors, and will not apply to officers of the Company who are not directors.
Section 14 of the Company's By-laws ("Section 14") provides that 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 (a "proceeding"), by reason of the fact that he,
or a person of whom he is the legal representative, is or was a director,
officer, employee or agent of the Company (including any controlling stockholder
of the Company acting as an agent of the Company), or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, or of a partnership, joint venture, trust or other enterprise,
shall be indemnified and held harmless by the Company to the fullest extent
authorized by the Delaware GCL, as presently or hereafter in effect, against all
expenses, liability and loss (including attorneys' fees, judgments, fines,
excise taxes or penalties resulting from the Employee Retirement Income Security
Act of 1974, amounts paid or to be paid in settlement and amounts expended in
seeking indemnification granted to such person under applicable law, Section 14
or any agreement with the Company) 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 heirs, executors and administrators; provided,
however, that, except as provided below the Company shall indemnify any person
seeking indemnity in connection with an action, suit or proceeding (or part
thereof) initiated by such person only if such action, suit or proceeding (or
part thereof) was authorized by the Board of Directors of the Company. The right
to indemnification conferred in Section 14 is a contract right and includes the
right to be paid by the Company the expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that, if
Delaware GCL requires of any class of persons entitled to advancement of
expenses, the payment of such expenses incurred by a director, officer, employee
or agent in his or her capacity as a director, officer, employee or agent in
advance of the final disposition of a proceeding, payment shall be made only
upon delivery to the Company of an undertaking, by or on behalf of such person,
to repay all amounts so advance if it shall ultimately be determined that such
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<PAGE> 160
director, officer, employee or agent is not entitled to be indemnified under
Section 14 or otherwise. Section 14 provides further that no advancement of
expenses shall be made if the Board of Directors has made a determination that
the advancement of expenses is not proper in the circumstances because such
person has not met the applicable standard of conduct set forth in the Delaware
GCL.
The Company has a Directors and Officers Insurance and Company
Reimbursement Policy which protects directors and officers of the Company and
its subsidiaries, subject to the limits, exceptions and other terms and
conditions of such policy, against damages, judgments, settlements and legal
costs incurred because of any actual or alleged breach of duty, neglect, error,
misstatement, misleading statement, or act by the directors or officers of the
Company and in their respective capacities as such, or any matter claimed
against them solely by reason of their status as directors and officers of the
Company or its subsidiaries.
Under the Delaware GCL, directors and officers as well as other employees
and individuals may be indemnified against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation such
as a derivative action) if they acted in good faith and in a manner they
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 their conduct was unlawful. A similar standard of
care is applicable in the case of actions by or in the right of the corporation,
except that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with defense or settlement of such an action and the
Delaware GCL requires court approval before there can be any indemnification
where the person seeking indemnification has been found liable to the
corporation.
The Company has entered into indemnification agreements (the "Agreements")
with its directors which provide that in the event a director was, is or becomes
a party to or witness or other participant in, or is threatened to be made a
party to or witness or other participant in, any threatened, pending or
completed action, suit or proceeding, or any inquiry or investigation, whether
instituted by or in the name of the Company or any other party, that such
director in good faith believes might lead to the institution of any such
action, suit or proceeding, whether civil, criminal, administrative,
investigative or other (a "Claim") by reason of (or arising in part out of) any
event or occurrence related to the fact that such director is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee, trustee, agent or fiduciary of
another corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise, or occurring by reason of anything done or not done by such
director in any such capacity (an "Indemnifiable Event"), the Company will
indemnify such director to the full extent authorized or permitted by law as
soon as practicable but in any event no later than 45 days after written demand
is presented to the Company, against any and all expenses (including, without
limitation, attorneys' fees and all other costs, expenses and obligations
reasonably paid or incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing to defend, be
a witness in or participate in any Claim relating to any Indemnifiable Event)
("Expenses"), judgments, fines, penalties, taxes and any and all amounts paid in
settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such Expenses, judgments, fines,
penalties, taxes or amounts paid in settlement) of such Claim. If so requested
by such director, the Company must advance any and all reasonable Expenses to
such director (an "Expense Advance").
Notwithstanding the foregoing, pursuant to the Agreements (i) the
obligations of the Company will be subject to the condition that the Reviewing
Party (defined as any appropriate person or body consisting of a member or
members of the Company's Board of Directors or any other person or body
appointed by the Board of Directors who is not a party to the particular Claim
for which such director is seeking indemnification, the stockholders of the
company, or independent legal counsel) has not determined (in a written opinion,
in any case in which independent legal counsel is involved), no later than 45
days after written demand is presented to the Company in accordance with the
foregoing, that such director would not be permitted to be indemnified under
applicable law, and (ii) the obligation of the Company to make an Expense
Advance will be subject to the condition that, if, when and to the extent that
the Reviewing Party determines that such director would not be permitted to be
so indemnified under applicable law, the Company will be entitled to be
reimbursed by such director for all such amounts theretofore paid; provided,
however, that if such director has commenced or
II-2
<PAGE> 161
thereafter commences legal proceedings in a court of competent jurisdiction to
secure a determination that such director should be indemnified under applicable
law, any determination made by the Reviewing Party that such director would not
be permitted to be indemnified under applicable law will not be binding and such
director will not be required to reimburse the Company for any Expense Advance
until a final judicial determination is made with respect thereto (as to which
all rights of appeal therefrom have been exhausted or lapsed). If there has been
no determination by the Reviewing Party or if the Reviewing Party determines
that such director substantively would not be permitted to be indemnified in
whole or in part under applicable law, such director will have the right to
commence litigation in any court in the State of Texas or the State of Delaware
having subject matter jurisdiction thereof and in which venue is proper seeking
an initial determination by the court or challenging any such determination by
the Reviewing Party or any aspect thereof, including the legal or factual bases
therefor. Alternatively, such director at his option will be able to seek an
award in arbitration to be conducted by a single arbitrator pursuant to the
rules of the American Arbitration Association, such award to be made within
sixty days following the filing of the demand for arbitration. Such judicial
proceeding or arbitration will be required to be made de novo and such director
will not be prejudiced by reason of a determination made or deemed to have been
made pursuant to the terms of the Agreement that such director is not entitled
to indemnification. If the court or arbitrator determines that such director is
entitled to any indemnification under the Agreements, the Company will be
required to pay all reasonable Expenses reasonably paid or incurred by such
director in connection with such adjudication or award in arbitration
(including, but not limited to, any appellate proceedings). Any determination by
the Reviewing Party otherwise will be conclusive and binding on the Company and
such director.
Notwithstanding the other provisions of the Agreements, to the extent that
any director has served as a witness on behalf of the Company or has been
successful, on the merits or otherwise, in defense of any or all Claims relating
in whole or in part to an Indemnifiable Event, or in defense of any issue or
matter therein, including, without limitation, dismissal without prejudice, such
director will be indemnified against Expenses reasonably paid or incurred by him
or on his behalf in connection therewith.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<C> <S>
3.1 -- Certificate of Incorporation of HarCor Energy, Inc., as amended.(1)
3.2 -- Bylaws of HarCor Energy, Inc., as amended.(1)
3.3 -- Certificate of Incorporation of Warrior, Inc., as amended.(1)
3.4 -- Bylaws of Warrior, Inc., as amended.(1)
3.5 -- Certificate of Incorporation of HTAC Investments, Inc., as
amended.(1)
3.6 -- Bylaws of HTAC Investments, Inc., as amended.(1)
4.1 -- Certificate of Designation, Powers, Preferences and Rights of the
Series A Preferred Stock of HarCor Energy, Inc.(2)
4.2 -- Certificate of Designation, Powers, Preferences and Rights of the
Series B Convertible Preferred Stock of HarCor Energy, Inc.(2)
4.3 -- Certificate of Designation, Powers, Preferences and Rights of the
Series C Convertible Preferred Stock of HarCor Energy, Inc.(2)
4.4 -- Certificate of Designation, Powers, Preferences and Rights of the
Series E Junior Convertible Preferred Stock of HarCor Energy, Inc.(2)
4.5 -- Certificate of Designations, Preferences and Rights of the Series F
Convertible Preferred Stock of HarCor Energy, Inc.(2)
4.6 -- Option Agreement dated August 21, 1992 between HarCor Energy, Inc.
and Jefferson Gas Systems, Inc.(4)
4.7 -- Form of Warrant issued in domestic private placement of Investment
Units.(4)
4.8 -- Form of Warrant issued in international private placement of
Investment Units.(4)
4.9 -- Warrant to Trust Company of the West dated November 23, 1992.(5)
4.10 -- Amendment No. 1 dated July 30, 1994 to Warrant Certificate dated
November 23, 1992 between HarCor Energy, Inc. and Trust Company of
the West.(18)
</TABLE>
II-3
<PAGE> 162
<TABLE>
<S> <C>
4.11 -- Amendment No. 2 dated November 1, 1994 to Warrant Certificate dated
November 23, 1992 between HarCor Energy, Inc. and Trust Company of
the West.(17)
4.12 -- Amended and Restated Registration Rights Agreement dated as of July
30, 1994 between HarCor Energy, Inc. and Trust Company of the
West.(18)
4.13 -- Warrant to Internationale Nederlanden (U.S.) Capital Corporation
dated March 18, 1994.(13)
4.14 -- Warrant to Internationale Nederlanden (U.S.) Capital Corporation
dated November 20, 1989, as amended in December 1990 and on March 18,
1994.(13)
4.15 -- Warrant issued to Bakersfield Energy Resources, Inc. dated June 30,
1994.(16)
4.16 -- Warrant to International Nederlanden (U.S.) Capital Corporation dated
June 30, 1994.(18)
4.17 -- Registration Rights Agreement between HarCor Energy, Inc. and
Internationale Nederlanden (U.S.) Capital Corporation dated as of
June 30, 1994.(18)
4.18 -- Warrant to First Union National Bank of North Carolina dated June 30,
1994.(18)
4.19 -- Registration Rights Agreement between HarCor Energy, Inc. and First
Union National Bank of North Carolina dated as of June 30, 1994.(18)
4.20 -- Specimen of Common Stock Certificate.(15)
4.21 -- Stock Purchase Agreement dated as of June 27, 1994 among HarCor
Energy, Inc. and the Purchasers named on Schedule I thereto.(18)
4.22 -- Form of Warrant to Rauscher, Pierce, Refsnes, Inc.(18)
4.23 -- Warrant Agreement among HarCor Energy, Inc. and Texas Commerce Bank
National Association as warrant agent dated July 24, 1995.(19)
4.24 -- Preferred Stock Warrant Agreement between HarCor Energy, Inc. and BT
Securities Corporation dated July 24, 1995.(19)
4.25 -- Registration Rights Agreement among HarCor Energy, Inc., Warrior,
Inc., HTAC Investments, Inc., BT Securities Corporation and
Internationale Nederlanden (U.S.) Securities Corporation dated July
24, 1995.(19)
4.26 -- Securityholders' and Registration Rights Agreement among HarCor
Energy, Inc., Warrior, Inc., HTAC Investments, Inc. and Texas
Commerce Bank National Association, as trustee, dated July 24,
1995.(19)
4.27 -- Indenture among HarCor Energy, Inc., Warrior, Inc., HTAC Investments,
Inc. and Texas Commerce Bank National Association, as trustee, dated
July 24, 1995, including forms of Series A Note and Exchange Note as
Exhibits A-1 and A-2 thereto, respectively.(19)
5.1 -- Opinion of Vinson & Elkins L.L.P., relating to the legality of the
14 7/8% Senior Secured Notes due 2002, Series B, of HarCor Energy,
Inc. registered pursuant hereto.(1)
8.1 -- Opinion of Vinson & Elkins L.L.P. as to federal income tax
matters.(1)
10.1 -- Amended and Restated Credit Agreement between HarCor Energy, Inc. and
Internationale Nederlanden (U.S.) Capital Corporation, as Agent, and
the Lenders identified therein dated as of July 19, 1995.(16)
10.2 -- [Reserved].
10.3 -- [Reserved].
10.4 -- Deed of Trust Mortgage, Line of Credit Mortgage, Assignment, Security
Agreement and Financing Statement from HarCor Energy, Inc. to Trond
D. Rokholt, Trustee and Internationale Nederlanden (U.S.) Capital
Corporation, Lender dated March 18, 1994.(13)
10.5 -- First Amendment to Deed of Trust, Mortgage, Line of Credit Mortgage,
Assignment, Security Agreement and Financing Statement dated June 30,
1994 by HarCor Energy, Inc. for the benefit of International
Nederlanden (U.S.) Capital Corporation, in its capacity as Agent for
itself and First Union National Bank of North Carolina.(18)
10.6 -- Deed of Trust, Mortgage, Line of Credit Mortgage, Assignment,
Security Agreement Fixture Filing and Financing Statement from HarCor
Energy, Inc. to Trond D. Rokholt, Trustee and Internationale
Nederlanden (U.S.) Capital Corporation, Lender dated as of June 30,
1994.(16)
</TABLE>
II-4
<PAGE> 163
<TABLE>
<S> <C>
10.7 -- South Texas Limited Partnership Articles of Limited Partnership.(4)
10.8 -- Buy-Sell Agreement dated October 23, 1992 between HarCor Energy, Inc.
and JMI Services Nevada, Inc.(4)
10.9 -- Amendment to Buy-Sell Agreement between HarCor Energy, Inc. and JMI
Services Nevada, Inc. dated May 6, 1993.(6)
10.10 -- Assignment and Assumption Agreement between HarCor Energy, Inc. and
JMI Services Nevada, Inc. dated May 6, 1993.(7)
10.11 -- Purchase and Sale Agreement by and between Sun Operating Limited
Partnership and Washington Energy Exploration, as amended.(8)
10.12 -- Assignment of Purchase and Sale Agreement dated October 20, 1992
between Washington Energy Exploration, Inc. and South Texas Limited
Partnership.(8)
10.13 -- Agreement of Dissolution and Termination dated March 18, 1994 between
Washington Energy Exploration, Inc. and HarCor Energy, Inc.(13)
10.14 -- Purchase Agreement dated December 4, 1987 by and between HarCor
Energy Inc. and Harrington and Company EV Fund I, Limited.(9)
10.15 -- HarCor Energy, Inc. 1992 Stock Option Plan.(10)
10.16 -- Form of Incentive Stock Option Agreement and Nonstatutory Stock
Option Agreement for options issued under the HarCor Energy, Inc.
1992 Stock Option Plan.(10)
10.17 -- HarCor Energy, Inc. 1992 Nonemployee Directors' Stock Option Plan and
form of Option Agreement, as amended.(14)
10.18 -- HarCor Energy, Inc. 1994 Stock Option Plan and related forms of
Incentive Stock Option Agreement and Nonstatutory Stock Option
Agreement.(14)
10.19 -- Purchase and Sale or Exchange Agreement dated April 18, 1994 between
HarCor Energy, Inc. and Bakersfield Energy Resources, Inc.,
Bakersfield Energy Partners, L.P. and Bakersfield Gas, L.P.(15)
10.20 -- Amendment to Purchase and Sale or Exchange Agreement dated June 8,
1994 by and between HarCor Energy, Inc. and Bakersfield Energy
Resources, Inc., Bakersfield Energy Partners, L.P. and Bakersfield
Gas, L.P.(15)
10.21 -- Form of Restricted Stock Agreements between HarCor Energy, Inc. and
its officers.(17)
21.1 -- Subsidiaries of HarCor Energy, Inc.(13)
23.1 -- Consent of Williamson Petroleum Consultants, Inc.(1)
23.2 -- Consent of Ryder Scott Company Petroleum Engineers.(1)
23.3 -- Consent of Huddleston & Co., Inc.(1)
23.4 -- Consent of Arthur Andersen LLP.(1)
23.5 -- Consent of KMPG Peat Marwick Thorne.(1)
24.1 -- [Reserved].
25.1 -- Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Texas Commerce Bank National Association.(1)
25.2 -- Form T-2 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Steven R. Patterson.(1)
99.1 -- Consolidated HCO Energy Ltd.'s December 31, 1991 audited financial
statements.(11)
99.2 -- Consolidated HCO Energy Ltd.'s December 31, 1992 audited financial
statements.(12)
99.3 -- Form of Letter of Transmittal.(1)
</TABLE>
- ---------------
(1) Filed herewith.
(2) Included in Exhibit 3.1.
(3) [Reserved].
II-5
<PAGE> 164
(4) Filed as an exhibit to HarCor Energy, Inc.'s Amendment No. 1 to its Form
10-Q for the period ended September 30, 1992 dated as of December 5, 1992
and filed with the Commission on December 7, 1992 and incorporated herein
by reference.
(5) Filed as an exhibit to HarCor Energy, Inc.'s Form 8-K dated as of November
23, 1992 and filed with the Commission on December 7, 1992 and incorporated
herein by reference.
(6) Filed as an exhibit to HarCor Energy, Inc.'s Form 8-K dated May 6, 1993 and
filed with the Commission and incorporated by reference herein.
(7) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-Q for the quarterly
period ended March 31, 1992 and incorporated herein by reference.
(8) Filed as an exhibit to Amendment No. 2 to HarCor Energy, Inc.'s Form 8-K
dated October 19, 1992 and filed with the Commission on December 18, 1992
and incorporated herein by reference.
(9) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-K for the year ended
December 31, 1987 and incorporated herein by reference.
(10) Filed as an exhibit to HarCor Energy, Inc.'s definitive proxy statement for
its 1992 Annual Meeting of Stockholders.
(11) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-K for the year ended
December 31, 1991 and incorporated herein by reference.
(12) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-K for the year ended
December 31, 1992 and incorporated herein by reference.
(13) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-K for the year ended
December 31, 1993 and incorporated herein by reference.
(14) As filed as an exhibit to HarCor Energy, Inc.'s definitive proxy statement
for its 1994 Annual Meeting of Stockholders and incorporated herein by
reference.
(15) Filed as an exhibit to HarCor Energy, Inc.'s Registration Statement on Form
S-1 (No. 33-80942) and incorporated herein by reference.
(16) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-Q for the quarterly
period ended June 30, 1994 and incorporated herein by reference.
(17) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-Q for the quarterly
period ended September 30, 1994 and incorporated herein by reference.
(18) Filed as an exhibit to HarCor Energy, Inc.'s Registration Statement on Form
S-1, Amended to become Form S-3 (Registration No. 33-84496).
(19) Filed as an exhibit to HarCor Energy, Inc.'s Form 8-K dated as of July 20,
1995 and incorporated herein by reference.
(b) Financial Statement Schedules
No financial statement schedules are required to be filed.
ITEM 22. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) (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; and
II-6
<PAGE> 165
(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.
(2) That, for the purpose 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.
(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.
(b) That, insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers
and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against
public policy as expressed in such Act, and is therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person thereof in connection with the securities being
registered (and the Securities and Exchange Commission is still of the same
opinion), the Company 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 such Act and will be governed by the final
adjudication of such issue.
(c) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this
Form, 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.
(d) 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.
II-7
<PAGE> 166
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, 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 AUGUST 22, 1995.
HARCOR ENERGY, INC.
By GARY S. PECK
--------------------------------------
Gary S. Peck
Vice President -- Finance,
Chief Financial Officer and
Secretary
WE, THE UNDERSIGNED DIRECTORS AND OFFICERS OF HARCOR ENERGY, INC., DO
HEREBY CONSTITUTE AND APPOINT MARK G. HARRINGTON, FRANCIS H. ROTH, AND GARY S.
PECK, OR ANY OF THEM, OUR TRUE AND LAWFUL ATTORNEYS AND AGENTS, TO DO ANY AND
ALL ACTS AND THINGS IN OUR NAME AND ON OUR BEHALF IN OUR CAPACITIES AS DIRECTORS
AND OFFICERS, AND TO EXECUTE ANY AND ALL INSTRUMENTS FOR US AND IN OUR NAMES IN
THE CAPACITIES INDICATED BELOW, WHICH SUCH ATTORNEYS AND AGENTS MAY DEEM
NECESSARY OR ADVISABLE TO ENABLE THE CORPORATION TO COMPLY WITH THE SECURITIES
ACT OF 1933, AS AMENDED, AND ANY RULES, REGULATIONS AND REQUIREMENTS OF THE
SECURITIES AND EXCHANGE COMMISSION, IN CONNECTION WITH THE FILING OF THIS
REGISTRATION STATEMENT, INCLUDING SPECIFICALLY WITHOUT LIMITATION, POWER AND
AUTHORITY TO SIGN FOR US OR ANY OF US, IN OUR NAMES IN THE CAPACITIES INDICATED
BELOW, ANY AND ALL AMENDMENTS HERETO; AND WE DO HEREBY RATIFY AND CONFIRM ALL
THAT SUCH ATTORNEYS AND AGENTS SHALL DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- --------------------------------------------- ---------------------------- ----------------
<S> <C> <C>
/s/ MARK G. HARRINGTON Chairman of the Board, Chief August 10, 1995
- --------------------------------------------- Executive Officer and
Mark G. Harrington Director (Principal
Executive Officer)
/s/ FRANCIS H. ROTH President, Chief Operating August 10, 1995
- --------------------------------------------- Officer and Director
Francis H. Roth
/s/ GARY S. PECK Vice President-Finance, August 10, 1995
- --------------------------------------------- Chief Financial Officer and
Gary S. Peck Secretary (Principal
Financial and Accounting
Officer)
/s/ ROBERT J. CRESCI Director August 21, 1995
- ---------------------------------------------
Robert J. Cresci
/s/ VINOD K. DAR Director August 21, 1995
- ---------------------------------------------
Vinod K. Dar
/s/ DAVID E. K. FRISCHKORN, JR. Director August 21, 1995
- ---------------------------------------------
David E. K. Frischkorn, Jr.
</TABLE>
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<PAGE> 167
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- --------------------------------------------- ---------------------------- ----------------
<S> <C> <C>
/s/ AMBROSE K. MONELL Director August 14, 1995
- ---------------------------------------------
Ambrose K. Monell
/s/ JAMES RAWLS Director August 11, 1995
- ---------------------------------------------
James Rawls
/s/ HERBERT L. OAKES, JR. Director August 21, 1995
- ---------------------------------------------
Herbert L. Oakes, Jr.
/s/ ROBERT A. SHORE Director August 10, 1995
- ---------------------------------------------
Robert A. Shore
</TABLE>
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<PAGE> 168
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, WARRIOR, INC.
AND HTAC INVESTMENTS, INC. HAVE DULY CAUSED THIS REGISTRATION STATEMENT TO BE
SIGNED ON THEIR BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE
CITY OF HOUSTON, STATE OF TEXAS, ON AUGUST 22, 1995.
WARRIOR, INC.
HTAC INVESTMENTS, INC.
By /s/ MARK G. HARRINGTON
--------------------------------------
Mark G. Harrington
President
WE, THE UNDERSIGNED DIRECTORS AND OFFICERS OF WARRIOR, INC. AND HTAC
INVESTMENTS, INC., DO HEREBY CONSTITUTE AND APPOINT MARK G. HARRINGTON, FRANCIS
H. ROTH, AND GARY S. PECK, OR ANY OF THEM, OUR TRUE AND LAWFUL ATTORNEYS AND
AGENTS, TO DO ANY AND ALL ACTS AND THINGS IN OUR NAME AND ON OUR BEHALF IN OUR
CAPACITIES AS DIRECTORS AND OFFICERS, AND TO EXECUTE ANY AND ALL INSTRUMENTS FOR
US AND IN OUR NAMES IN THE CAPACITIES INDICATED BELOW, WHICH SUCH ATTORNEYS AND
AGENTS MAY DEEM NECESSARY OR ADVISABLE TO ENABLE THE CORPORATION TO COMPLY WITH
THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY RULES, REGULATIONS AND
REQUIREMENTS OF THE SECURITIES AND EXCHANGE COMMISSION, IN CONNECTION WITH THE
FILING OF THIS REGISTRATION STATEMENT, INCLUDING SPECIFICALLY WITHOUT
LIMITATION, POWER AND AUTHORITY TO SIGN FOR US OR ANY OF US, IN OUR NAMES IN THE
CAPACITIES INDICATED BELOW, ANY AND ALL AMENDMENTS HERETO; AND WE DO HEREBY
RATIFY AND CONFIRM ALL THAT SUCH ATTORNEYS AND AGENTS SHALL DO OR CAUSE TO BE
DONE BY VIRTUE HEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- --------------------------------------------- ------------------------------ ----------------
<S> <C> <C>
/s/ MARK G. HARRINGTON President and Director August 14, 1995
- ---------------------------------------------
Mark G. Harrington
/s/ FRANCIS H. ROTH Vice President and Director August 14, 1995
- ---------------------------------------------
Francis H. Roth
/s/ GARY S. PECK Secretary and Treasurer August 14, 1995
- ---------------------------------------------
Gary S. Peck
</TABLE>
II-10
<PAGE> 169
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -----------------------------------------------------------------------------------
<C> <S> <C>
3.1 -- Certificate of Incorporation of HarCor Energy, Inc., as
amended.(1)
3.2 -- Bylaws of HarCor Energy, Inc., as amended.(1)
3.3 -- Certificate of Incorporation of Warrior, Inc., as
amended.(1)
3.4 -- Bylaws of Warrior, Inc., as amended.(1)
3.5 -- Certificate of Incorporation of HTAC Investments, Inc., as
amended.(1)
3.6 -- Bylaws of HTAC Investments, Inc., as amended.(1)
4.1 -- Certificate of Designation, Powers, Preferences and Rights
of the Series A Preferred Stock of HarCor Energy, Inc.(2)
4.2 -- Certificate of Designation, Powers, Preferences and Rights
of the Series B Convertible Preferred Stock of HarCor
Energy, Inc.(2)
4.3 -- Certificate of Designation, Powers, Preferences and Rights
of the Series C Convertible Preferred Stock of HarCor
Energy, Inc.(2)
4.4 -- Certificate of Designation, Powers, Preferences and Rights
of the Series E Junior Convertible Preferred Stock of
HarCor Energy, Inc.(2)
4.5 -- Certificate of Designations, Preferences and Rights of the
Series F Convertible Preferred Stock of HarCor Energy,
Inc.(2)
4.6 -- Option Agreement dated August 21, 1992 between HarCor
Energy, Inc. and Jefferson Gas Systems, Inc.(4)
4.7 -- Form of Warrant issued in domestic private placement of
Investment Units.(4)
4.8 -- Form of Warrant issued in international private placement
of Investment Units.(4)
4.9 -- Warrant to Trust Company of the West dated November 23,
1992.(5)
4.10 -- Amendment No. 1 dated July 30, 1994 to Warrant Certificate
dated November 23, 1992 between HarCor Energy, Inc. and
Trust Company of the West.(18)
4.11 -- Amendment No. 2 dated November 1, 1994 to Warrant
Certificate dated November 23, 1992 between HarCor Energy,
Inc. and Trust Company of the West.(17)
4.12 -- Amended and Restated Registration Rights Agreement dated as
of July 30, 1994 between HarCor Energy, Inc. and Trust
Company of the West.(18)
4.13 -- Warrant to Internationale Nederlanden (U.S.) Capital
Corporation dated March 18, 1994.(13)
4.14 -- Warrant to Internationale Nederlanden (U.S.) Capital
Corporation dated November 20, 1989, as amended in December
1990 and on March 18, 1994.(13)
4.15 -- Warrant issued to Bakersfield Energy Resources, Inc. dated
June 30, 1994.(16)
4.16 -- Warrant to International Nederlanden (U.S.) Capital
Corporation dated June 30, 1994.(18)
4.17 -- Registration Rights Agreement between HarCor Energy, Inc.
and Internationale Nederlanden (U.S.) Capital Corporation
dated as of June 30, 1994.(18)
4.18 -- Warrant to First Union National Bank of North Carolina
dated June 30, 1994.(18)
4.19 -- Registration Rights Agreement between HarCor Energy, Inc.
and First Union National Bank of North Carolina dated as of
June 30, 1994.(18)
4.20 -- Specimen of Common Stock Certificate.(15)
</TABLE>
<PAGE> 170
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -----------------------------------------------------------------------------------
<S> <C>
4.21 -- Stock Purchase Agreement dated as of June 27, 1994 among
HarCor Energy, Inc. and the Purchasers named on Schedule I
thereto.(18)
4.22 -- Form of Warrant to Rauscher, Pierce, Refsnes, Inc.(18)
4.23 -- Warrant Agreement among HarCor Energy, Inc. and Texas
Commerce Bank National Association as warrant agent dated
July 24, 1995.(19)
4.24 -- Preferred Stock Warrant Agreement between HarCor Energy,
Inc. and BT Securities Corporation dated July 24, 1995.(19)
4.25 -- Registration Rights Agreement among HarCor Energy, Inc.,
Warrior, Inc., HTAC Investments, Inc., BT Securities
Corporation and Internationale Nederlanden (U.S.)
Securities Corporation dated July 24, 1995.(19)
4.26 -- Securityholders' and Registration Rights Agreement among
HarCor Energy, Inc., Warrior, Inc., HTAC Investments, Inc.
and Texas Commerce Bank National Association, as trustee,
dated July 24, 1995.(19)
4.27 -- Indenture among HarCor Energy, Inc., Warrior, Inc., HTAC
Investments, Inc. and Texas Commerce Bank National
Association, as trustee, dated July 24, 1995, including
forms of Series A Note and Exchange Note as Exhibits A-1
and A-2 thereto, respectively.(19)
5.1 -- Opinion of Vinson & Elkins L.L.P., relating to the legality
of the 14 7/8% Senior Secured Notes due 2002, Series B, of
HarCor Energy, Inc. registered pursuant hereto.(1)
8.1 -- Opinion of Vinson & Elkins L.L.P. as to federal income tax
matters.(1)
10.1 -- Amended and Restated Credit Agreement between HarCor
Energy, Inc. and Internationale Nederlanden (U.S.) Capital
Corporation, as Agent, and the Lenders identified therein
dated as of July 19, 1995.(16)
10.2 -- [Reserved].
10.3 -- [Reserved].
10.4 -- Deed of Trust Mortgage, Line of Credit Mortgage,
Assignment, Security Agreement and Financing Statement from
HarCor Energy, Inc. to Trond D. Rokholt, Trustee and
Internationale Nederlanden (U.S.) Capital Corporation,
Lender dated March 18, 1994.(13)
10.5 -- First Amendment to Deed of Trust, Mortgage, Line of Credit
Mortgage, Assignment, Security Agreement and Financing
Statement dated June 30, 1994 by HarCor Energy, Inc. for
the benefit of International Nederlanden (U.S.) Capital
Corporation, in its capacity as Agent for itself and First
Union National Bank of North Carolina.(18)
10.6 -- Deed of Trust, Mortgage, Line of Credit Mortgage,
Assignment, Security Agreement Fixture Filing and Financing
Statement from HarCor Energy, Inc. to Trond D. Rokholt,
Trustee and Internationale Nederlanden (U.S.) Capital
Corporation, Lender dated as of June 30, 1994.(16)
10.7 -- South Texas Limited Partnership Articles of Limited
Partnership.(4)
10.8 -- Buy-Sell Agreement dated October 23, 1992 between HarCor
Energy, Inc. and JMI Services Nevada, Inc.(4)
10.9 -- Amendment to Buy-Sell Agreement between HarCor Energy, Inc.
and JMI Services Nevada, Inc. dated May 6, 1993.(6)
10.10 -- Assignment and Assumption Agreement between HarCor Energy,
Inc. and JMI Services Nevada, Inc. dated May 6, 1993.(7)
10.11 -- Purchase and Sale Agreement by and between Sun Operating
Limited Partnership and Washington Energy Exploration, as
amended.(8)
</TABLE>
<PAGE> 171
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -----------------------------------------------------------------------------------
<S> <C>
10.12 -- Assignment of Purchase and Sale Agreement dated October 20,
1992 between Washington Energy Exploration, Inc. and South
Texas Limited Partnership.(8)
10.13 -- Agreement of Dissolution and Termination dated March 18,
1994 between Washington Energy Exploration, Inc. and HarCor
Energy, Inc.(13)
10.14 -- Purchase Agreement dated December 4, 1987 by and between
HarCor Energy Inc. and Harrington and Company EV Fund I,
Limited.(9)
10.15 -- HarCor Energy, Inc. 1992 Stock Option Plan.(10)
10.16 -- Form of Incentive Stock Option Agreement and Nonstatutory
Stock Option Agreement for options issued under the HarCor
Energy, Inc. 1992 Stock Option Plan.(10)
10.17 -- HarCor Energy, Inc. 1992 Nonemployee Directors' Stock
Option Plan and form of Option Agreement, as amended.(14)
10.18 -- HarCor Energy, Inc. 1994 Stock Option Plan and related
forms of Incentive Stock Option Agreement and Nonstatutory
Stock Option Agreement.(14)
10.19 -- Purchase and Sale or Exchange Agreement dated April 18,
1994 between HarCor Energy, Inc. and Bakersfield Energy
Resources, Inc., Bakersfield Energy Partners, L.P. and
Bakersfield Gas, L.P.(15)
10.20 -- Amendment to Purchase and Sale or Exchange Agreement dated
June 8, 1994 by and between HarCor Energy, Inc. and
Bakersfield Energy Resources, Inc., Bakersfield Energy
Partners, L.P. and Bakersfield Gas, L.P.(15)
10.21 -- Form of Restricted Stock Agreements between HarCor Energy,
Inc. and its officers.(17)
21.1 -- Subsidiaries of HarCor Energy, Inc.(13)
23.1 -- Consent of Williamson Petroleum Consultants, Inc.(1)
23.2 -- Consent of Ryder Scott Company Petroleum Engineers.(1)
23.3 -- Consent of Huddleston & Co., Inc.(1)
23.4 -- Consent of Arthur Andersen LLP.(1)
23.5 -- Consent KPMG of Peat Marwick Thorne.(1)
24.1 -- [Reserved].
25.1 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Texas Commerce Bank
National Association.(1)
25.2 -- Form T-2 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Steven R. Patterson.(1)
99.1 -- Consolidated HCO Energy Ltd.'s December 31, 1991 audited
financial statements.(11)
99.2 -- Consolidated HCO Energy Ltd.'s December 31, 1992 audited
financial statements.(12)
99.3 -- Form of Letter of Transmittal.(1)
</TABLE>
- ---------------
(1) Filed herewith.
(2) Included in Exhibit 3.1.
(3) [Reserved.]
(4) Filed as an exhibit to HarCor Energy, Inc.'s Amendment No. 1 to its Form
10-Q for the period ended September 30, 1992 dated as of December 5, 1992
and filed with the Commission on December 7, 1992 and incorporated herein
by reference.
(5) Filed as an exhibit to HarCor Energy, Inc.'s Form 8-K dated as of November
23, 1992 and filed with the Commission on December 7, 1992 and incorporated
herein by reference.
<PAGE> 172
(6) Filed as an exhibit to HarCor Energy, Inc.'s Form 8-K dated May 6, 1993 and
filed with the Commission and incorporated by reference herein.
(7) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-Q for the quarterly
period ended March 31, 1992 and incorporated herein by reference.
(8) Filed as an exhibit to Amendment No. 2 to HarCor Energy, Inc.'s Form 8-K
dated October 19, 1992 and filed with the Commission on December 18, 1992
and incorporated herein by reference.
(9) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-K for the year ended
December 31, 1987 and incorporated herein by reference.
(10) Filed as an exhibit to HarCor Energy, Inc.'s definitive proxy statement for
its 1992 Annual Meeting of Stockholders.
(11) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-K for the year ended
December 31, 1991 and incorporated herein by reference.
(12) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-K for the year ended
December 31, 1992 and incorporated herein by reference.
(13) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-K for the year ended
December 31, 1993 and incorporated herein by reference.
(14) As filed as an exhibit to HarCor Energy, Inc.'s definitive proxy statement
for its 1994 Annual Meeting of Stockholders and incorporated herein by
reference.
(15) Filed as an exhibit to HarCor Energy, Inc.'s Registration Statement on Form
S-1 (No. 33-80942) and incorporated herein by reference.
(16) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-Q for the quarterly
period ended June 30, 1994 and incorporated herein by reference.
(17) Filed as an exhibit to HarCor Energy, Inc.'s Form 10-Q for the quarterly
period ended September 30, 1994 and incorporated herein by reference.
(18) Filed as an exhibit to HarCor Energy, Inc.'s Registration Statement on Form
S-1, Amended to become Form S-3 (Registration No. 33-84496).
(19) Filed as an exhibit to HarCor Energy, Inc.'s Form 8-K dated as of July 20,
1995 and incorporated herein by reference.
<PAGE> 1
PAGE 1
State of Delaware
Office of the Secretary of State
-----------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PPC MERGER CORP.", FILED IN THIS OFFICE ON THE TWENTIETH DAY
OF MAY, A.D. 1987, AT 10 O'CLOCK A.M.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
2126867 8100 AUTHENTICATION: 7571621
950156132 DATE: 07-13-95
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
PPC MERGER CORP.
a Delaware Corporation
ARTICLE I.
The name of this corporation is PPC MERGER CORP.
ARTICLE II.
The address of its registered office in the State of Delaware is 1209
Orange Street in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is The Corporation Trust Company.
ARTICLE III.
The nature of business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
ARTICLE IV.
A. PPC Merger Corp. ("Corporation") is authorized to issue two classes
of shares of stock to be designated, respectively, the "Common Stock" and the
"Preferred Stock." The total number of shares of stock which the Corporation
shall have the authority to issue is Fifty-One Million, Five Hundred Thousand
(51,500,000) shares. The total number of shares of Common Stock which the
Corporation shall have authority to issue is Fifty Million (50,000,000) shares,
par value $.01 per share. The total number of shares of Preferred Stock which
the Corporation shall have authority to issue is One Million, Five Hundred
Thousand (1,500,000) shares, par value $.01 per share.
B. The holders of Common Stock shall have the following rights and
preferences, subject to the rights and preferences of the holders of Preferred
Stock, as determined by the Board of Directors pursuant to paragraph D of this
ARTICLE IV:
(1) To receive such dividends as the Board of Directors elects to
distribute;
(2) To have voting rights and powers; and
(3) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, to
<PAGE> 3
receive an equal distribution of the remaining assets and funds of the
Corporation.
C. The Board of Directors is hereby authorized to issue the Preferred
Stock in one or more series, to fix the number of shares of any series of
Preferred Stock and to determine the designation of any such series.
D. The Board of Directors is hereby authorized to fix or alter the
dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions, if any), the redemption
price or prices, and the liquidation preferences of any wholly unissued series
of Preferred Stock, and the number of shares constituting any such unissued
series and the designation thereof, or any of them; and to increase or decrease
the number of shares of any series subsequent to the issue of that series, but
not below the number of shares of such series then outstanding. In case the
number of shares of any series shall be so decreased, the shares constituting
such decrease shall resume the status which they had prior to the adoption of
the resolution originally fixing the number of shares of such series.
ATTICLE V.
The initial number of Directors of the corporation shall be seven (7).
The number of directors may hereafter be fixed from time to time by a By-law or
resolution duly adopted by the Board of Directors.
ARTICLE VI.
A director shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that this ARTICLE VI shall not eliminate or limit the liability of a
director (i) for any breach of his duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
international misconduct or a knowing violation of the law, (iii) under Section
174 of the General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived in improper personal benefit.
If the General Corporation Law of the State of Delaware is hereafter
amended to authorized corporate action further limiting or eliminating the
personal liability of directors, then the liability of the director to the
Corporation shall be limited or eliminated to the fullest extent permitted by
the General Corporation Law of the State of Delaware, as so amended from time to
time. Any repeal or modification of this ARTICLE VI 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.
<PAGE> 4
ARTICLE VII.
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or
repeal the By-laws of the Corporation.
ARTICLE VIII.
Elections of directors at annual or special meetings of stockholders
need not be by written ballot unless the By-laws of the Corporation otherwise
provide.
ARTICLE IX.
The name and mailing address of the incorporator of the Corporation is
as follows:
Michael J. Aloia
21515 Hawthorne Boulevard
Suite 625
Torrance, California 90503-6595
The powers of the incorporator shall terminate upon the filing of this
Certificate of Incorporation.
ARTICLE X.
The names and addresses of the initial Directors of the corporation are
as follows:
Name Address
Michael J. Aloia The address of each initial
Earle T. Casler, Jr. Director is:
Mark G. Harrington 21515 Hawthorne Boulevard
Dudley J. Hughes Suite 825
Ambrose Monell Torrance, CA 90503
James V. Pollock
Mims Wright
<PAGE> 5
I, THE UNDERSIGNED, being the sole incorporator herein before named,
for the purpose of forming a corporation pursuant to the General Corporation
Law of the State of Delaware, do make this certificate, herein declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 19th day of May, 1987.
/s/ MICHAEL J. ALOIA
-------------------------
Michael J. Aloia
Incorporator
<PAGE> 6
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AGREEMENT OF MERGER, WHICH MERGES:
"PANGEA PETROLEUM COMPANY", A CALIFORNIA CORPORATION, WITH AND INTO
"PPC MERGER CORP." UNDER THE NAME OF "PANGEA PETROLEUM COMPANY", A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND
FILED IN THIS OFFICE THE TWENTY-SIXTH DAY OF MAY, A.D. 1987, AT 10 O'CLOCK A.M.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
2126867 8100M AUTHENTICATION: 7571622
950156132 DATE: 07-13-95
<PAGE> 7
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (hereinafter referred to as the
"Merger Agreement"), is made as of May 26, 1987, by and between Pangea
Petroleum Company, a California corporation ("Pangea California"), and PPC
Merger Corp., a Delaware corporation ("PPC"). Pangea California and PPC are
sometimes referred to herein as the "Constituent Corporations."
The authorized capital stock of Pangea California consists of 1,500,000
shares of Preferred Stock without par value, and 35,000,000 shares of Common
Stock without par value, and the authorized capital stock of PPC consists of
1,500,000 shares of Preferred Stock, par value $.01 per share, and 50,000,000
shares of Common Stock, par value $.01 per share. The directors of the
Constituent Corporations deem it advisable and to the advantage of said
corporations that Pangea California merge into PPC upon the terms and
conditions herein provided.
NOW, THEREFORE, the parties hereby adopt the plan of reorganization
encompassed by this Merger Agreement and hereby agree that Pangea California
shall merge into PPC on the following terms, conditions and other provisions.
I.
TERMS AND CONDITIONS
1.1 Merger. Pangea California shall be merged with and into PPC (the
"Merger"), and PPC shall be the surviving corporation (the "Surviving
Corporation") effective upon the date when this Merger Agreement is filed with
the Secretary of State of the State of Delaware (the "Effective Date").
1.2 Succession. On the Effective Date, PPC shall succeed to all the
rights, privileges, powers and property, including without limitation all
rights, privileges, franchises, patents, trademarks, licenses, registrations
and other assets of every kind and description, of Pangea California in the
manner of and as more fully set forth in Section 259(a) of the General
Corporation Law of the State of Delaware.
1.3 Name of Surviving Corporation. Upon the Effective Date, by virtue
of the merger and without any further action on the part of the Constituent
Corporations or their shareholders, Article I of PPC's Certificate of
Incorporation shall be amended to read in its entirety as follows: "The name
of this corporation is Pangea Petroleum Company." For purposes of this Merger
Agreement, PPC is hereinafter referred to as "Pangea Delaware."
1.4 Common Stock of Pangea California and Pangea Delaware. Upon the
Effective Date, by virtue of the merger and without any further action on the
part of the Constituent
<PAGE> 8
Corporation or their shareholders, (i) each share of Common Stock of Pangea
California without par value issued and outstanding immediately prior to the
Effective Date shall be changed and converted into and become one fully paid
and nonassessable share of the Common Stock of Pangea Delaware par value
$.01 per share; (ii) each share of 10% Convertible Preferred Stock, stated
value $.50 per share, outstanding immediately prior to the Effective Date shall
be changed and converted into and become one fully paid and nonassessable share
of the 10% Convertible Preferred Stock of Pangea Delaware, stated value $.50
per share; and (iii) each share of Common Stock of Pangea Delaware par value
$.01 per share issued and outstanding immediately prior to the Effective Date
shall be cancelled and returned to the status of authorized but unissued
shares, without the payment of any consideration therefor.
1.5 Stock Certificates. On and after the Effective Date, all of the
outstanding certificates that prior to that time represented shares of the
Comnmon Stock and of the 10% Convertible Preferred Stock of Pangea California
shall be deemed for all purposes to evidence ownership of and to represent the
shaers of Pangea Delaware into which the shares of Pangea California
represented by such certificates have been converted as herein provided and
shall be so registered on the books and records of Pangea Delaware or its
transfer agents. The registered owner of any such outstanding stock certificate
shall, until such certificate shall have been surrendered for transfer or
conversion or otherwise accounted for to Pangea Delaware or its transfer agent,
have and be entitled to exercise any voting and other rights with respect to
and to receive any dividend and other distributions upon the shares of Pangea
Delaware evidenced by such outstanding certificate as provided above.
1.6 Options. On the Effective Date, Pangea Delaware will assume and
continue Pangea California's Non-Qualified Stock Option Plan, and Incentive
Stock Option Plan, and the outstanding and unexercised portions of all options
to buy Common Stock of Pangea California, including those issued pursuant to
its Non-Qualified Stock Option Plan and Incentive Stock Option Plan shall
become options for the same number of shares of Common Stock of Pangea Delaware
with no other changes in the terms and conditions of such options, including
exercise prices, and effective upon the Effective Date, Pangea Delaware hereby
assumes the outstanding and unexercised portions of such options and the
obligations of Pangea California with respect thereto.
1.7 Common Stock Purchase Warrant. On the Effective Date, Pangea
Delaware will assume all obligations of Pangea California pursuant to that
certain warrant covering an aggregate of 376,980 shares of the Common Stock of
Pangea California which was issued pursuant to Section 1.05 of that certain
Stock Purchase Agreement dated as of February 6, 1987 between Pangea California
and the Purchasers named therein; and the outstanding and unexercised portion
of such warrant shall on the Effective Date become a warrant to purchase the
same number of shares of
<PAGE> 9
the Common Stock of Pangea Delaware as the number of shares of the Common Stock
of Pangea California which could then be pruchased upon exercise of such
warrant, with no other changes in the terms and conditions of such warrant,
including the exercise price thereof.
II.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation and By-laws. The Certificate of
Incorporation and By-laws of Pangea Delaware as in effect immediately prior to
the Effective Date shall remain the Certificate of Incorporation and By-laws of
Pangea Delaware after the Effective Date until thereafter amended in accordance
with the provisions thereof and applicable law, except as set forth in Section
1.3.
2.2 Directors and Officers. The directors and officers of Pangea
California immediately prior to the Effective Date shall become the directors
and officers of Pangea Delaware after the Effective Date without change until
their successors have been duly elected and qualified in accordance with the
Certificate of Incorporation and By-laws of Pangea Delaware.
III.
MISCELLANEOUS
3.1 Further Assurances. From time to time, and when required by
Pangea Delaware or by its successors and assigns, there shall be executed and
delivered on behalf of Pangea California such deeds and other instruments, and
there shall be taken or caused to be taken by it such further and other action,
as shall be appropriate and necessary in order to vest or perfect, or to
conform of record or otherwise, in Pangea Delaware the title to and possession
of all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of Pangea Califorina and otherwise to carry out the
purposes of this Merger Agreement, and the officers and directors of Pangea
Delaware are fully authorized in the name and on behalf of Pangea California or
otherwise to take any and all such action and to execute and deliver any and
all such deeds and other instruments.
3.2 Amendment. At any time before or after approval by the
shareholders of Pangea Califorina, this Merger Agreement may be amended in any
manner (except that any of the princip[al terms may not be amended without the
approval of the shareholders of Pangea California) as may be determined in the
judgment of the respective Boards of Directors of Pangea Delaware and Pangea
California to be necessary, desirable or expedient in order to clarify the
intention of the parties hereto or to effect or faciliate the purpose and
intent of this Merger Agreement.
<PAGE> 10
I, Michael J. Aloia, Secretary of PPC MERGER CORP., a corporation
organized and existing under the laws of the State of Delaware, hereby certify,
as such secretary, that the Agreement of Merger to which this certificate is
attached, after having been first duly signed on behalf of the said corporation
and having been signed on behalf of PANGEA PETROLEUM COMPANY, a corporation of
the State of California was duly adopted pursuant to subsection (f) of section
251 of Title 8 of the Delaware Code of 1953, without any vote of the
stockholders of the surviving corporation; and that no shares of the
corporation were issued prior to the adoption by the board of directors of the
surviving corporation of the resolution approving the agreement of merger, and
that subsection (F) of section 251 of Title 8 of the Delaware code of 1953 is
applicable; and that the Agreement of Merger was adopted by action of the Board
of Directors of said PPC MERGER CORP., and is the duly adopted agreement and
act of the said corporation.
WITNESS my hand on this 26th day of May, 1987.
/s/ MICHAEL J. ALOIA
--------------------------------
Michael J. Aloia, Secretary
<PAGE> 11
3.3 Abandonment. At any time before the Effective Date, this Merger
Agreement may be terminated and the merger may be abandoned by the Board of
Directors of Pangea Califorina, notwithstanding the approval of this Merger
Agreement by the shareholders of Pangea California, or the consummation of the
merger may be deferred for a reasonable period if, in the opinion of the Board
of Directors of Pangea California, such action would be in the interests of
such corporations.
3.4 Governing Law. This Merger Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, this Merger Agreement, having first been duly
approved by the boards of Directors of Pangea California and Pangea Delaware,
is hereby executed on behalf of each said corporation and attested by their
respective officers thereunto duly authorized.
PANGEA PERTROLEUM COMPANY
A California corporation
By: /s/ EARLE T. CASLER, JR.
----------------------------------
Earle T. Casler, Jr.
President
ATTEST:
/s/ MICHAEL J. ALOIA
- ---------------------------------
Michael J. Aloia
Secretary
PPC MERGER CORP.
A Delaware corporation
By: /s/ EARLE T. CASLER, JR.
----------------------------------
Earle T. Casler, Jr.
Vice President
ATTEST:
/s/ MICHAEL J. ALOIA
- ---------------------------------
Michael J. Aloia
Secretary
<PAGE> 12
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "PANGEA PETROLEUM COMPANY", CHANGING ITS NAME FROM "PANGEA
PETROLEUM COMPANY" TO "HARCOR ENERGY, INC.", FILED IN THIS OFFICE ON THE
THIRTIETH DAY OF DECEMBER, A.D. 1987, AT 10 O'CLOCK A.M.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
2126867 8100 AUTHENTICATION: 7571623
950156132 DATE: 07-13-95
<PAGE> 13
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * *
PANGEA PETROLEUM COMPANY, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the
unanimous written consent of its members, filed with the minutes of the board,
adopted a resolution proposing and declaring advisable the following amendment
to the Certificate of Incorporation of said corporation:
RESOLVED, that subject to the approval of a majority of the
outstanding shares of stock of Pangea Petroleum Company and the
filing of an amendment to the corporation's Certificate of
Incorporation with the Delaware Secretary of State, Article I of
the corporation's Certificate of Incorporation is hereby
amended to read in its entirety as follows:
"1. The name of this corporation is HarCor Energy, Inc.
<PAGE> 14
SECOND: That in lieu of a meeting and vote of stockholders, the
the stockholders have given written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation
Law of the State of Delaware, and written notice of the adoption of the
amendment is being given as provided in Section 228 of the General Law of
the State of Delaware to every stockholder entitled to such notice.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 242 and 228 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said PANGEA PETROLEUM COMPANY has caused this
certificate to be signed by Earle T. Casler, Jr., its Executive Vice
President, and attested by Michael J. Aloia, its Secretary, this 28th day
of December, 1987.
PANGEA PETROLEUM COMPANY
By /s/ EARLE T. CASLER, JR.
------------------------------
Earle T. Casler, Jr.
Executive Vice President
ATTEST:
By /s/ MICHAEL J. ALOIA
------------------------------
Michael J. Aloia
Secretary
<PAGE> 15
PAGE 1
State of Delaware
Office of the Secretary of State
-----------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "HARCOR ENERGY, INC.", FILED IN THIS OFFICE ON THE THIRTIETH DAY
OF JUNE, A.D. 1988, AT 9 O'CLOCK A.M.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
2126867 8100 AUTHENTICATION: 7571624
950156132 DATE: 07-13-95
<PAGE> 16
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
HARCOR ENERGY, 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 at a meeting of the Board of Directors of the Company
resolutions were duly adopted setting forth a proposed amendment of the
Certificate of Incorporation of the Company declaring said amendment to be
advisable and stating that said amendment should be brought before the annual
meeting of the stockholders of the Company for consideration thereof. The
resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of the Company be
amended by adding a new Article XI so that said Article shall be and
read as follows:
"In addition to the right of the Board of Directors of the Corporation
to make nominations for the election of directors in accordance with
the Bylaws of this corporation, nominations for the election of
directors may be made by any stockholder entitled to vote for the
election of directors if that stockholder complies with all of the
provisions of this Article XI.
(1) Advance notice of such proposed nomination shall be received by
the Chairman of the Nominating Committee of the Board of Directors of
the corporation (which notice may be sent to such Chairman in care of
the
<PAGE> 17
Secretary of the corporation) or, in the absence of such a Nominating
Committee, by the Secretary of the Corporation, not less than 30 days
nor more than 90 days prior to any meeting of the stockholders called
for the election of directors; provided, however, that if fewer than 31
days' notice of the meeting is given to stockholders, such written
notice shall be received not later than the close of business on the
tenth day following the day on which notice of the meeting was
mailed to stockholders.
(2) Each notice under Article XI shall set forth (i) the name, age,
business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment of
each such nominee, and (iii) the number of shares of stock of the
corporation which are beneficially owned by each such nominee. In
addition, the stockholder making such nomination shall promptly provide
any other information reasonably requested by the corporation.
(3) The nomination made by a stockholder may only be made in a meeting
of the stockholders of the corporation called for the election of
directors at which such stockholder is present in person or by proxy,
and can only be made by a stockholder who has theretofore complied with
the notice provisions of Article XI above.
(4) The Chairman of the meeting may in his discretion determine and
declare to the meeting that a nomination was not made in accordance
with the foregoing procedures, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be
disregarded.
Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least
66-2/3% of the voting power of the outstanding shares of the
corporation shall be required to alter, amend or adopt any provision
inconsistent with or repeal any of the provisions of this Article XI."
<PAGE> 18
RESOLVED FURTHER, that the Certificate of Incorporation of this Company
be amended by adding a new Article XII so that said Article shall be
and read as follows:
"The affirmative vote of the holders of not less than 66-2/3% of the
outstanding voting stock of the corporation shall be required for the
approval or authorization of any (i) merger or consolidation of the
corporation with or into any other corporation, or (ii) sale, lease,
exchange or other disposition of all or substantially all of the assets
of the corporation to or with any corporation, person or other entity;
provided, however, that such 66-2/3% voting requirement shall not be
applicable if (a) a majority of the outstanding shares of all classes
of stock entitled to vote generally in the election of directors,
considered for this purpose to be one class, of such other corporation,
person or entity is owned of record or beneficially by the corporation
and its subsidiaries or (b) the Board of Directors of the corporation
shall have approved such a transaction described in clause (i) or (ii)
by a resolution adopted by a majority of its members. Notwithstanding
any other provision of the Certificate of Incorporation or the Bylaws
of the corporation or any lesser percentage that may be specified by
law, the vote or consent of at least 66-2/3% of the outstanding stock
of the corporation shall be required to amend, alter, change or repeal
any of the provisions of this Article XII."
SECOND: That thereafter, pursuant to resolution of Board of Directors,
the annual meeting of the stockholders of Company was duly called and held,
upon notice in accordance Section 222 of the General Corporation Law of the
State of Delaware at which meeting the necessary number of shares as required
by statute were voted in favor of the amendment.
3
<PAGE> 19
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the Company shall not be reduced under or
by reason of said amendment.
IN WITNESS WHEREOF, the Company has caused this certificate to be
signed by Nace F. Mefford, Jr., its President, and Michael J. Aloia, its
Secretary, this 27th day of June, 1988.
By: /s/ NACE F. MEFFORD, JR.
------------------------------
Nace F. Mefford, Jr.
President
ATTEST: /s/ MICHAEL J. ALOIA
--------------------------
Michael J. Aloia
Secretary
4
<PAGE> 20
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "HARCOR ENERGY, INC.", FILED IN THIS OFFICE ON THE TWENTY-EIGHTH
DAY OF NOVEMBER, A.D. 1988, AT 9 O'CLOCK A.M.
<TABLE>
<S> <C> <C>
2126867 8100 [SEAL] /s/ EDWARD J. FREEL
950156132 Edward J. Freel, Secretary of
State
AUTHENTICATION: 7571625
DATE: 07-13-95
</TABLE>
<PAGE> 21
CERTIFICATE OF DESIGNATION, POWERS, PREFERENCES AND
RIGHTS OF THE SERIES A PREFERRED STOCK
OF
HARCOR ENERGY, INC.
(PURSUANT TO SECTION 151 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE)
HARCOR ENERGY, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), does hereby
certify that the following resolutions have been duly adopted by the Board of
Directors of the Corporation by unanimous written consents dated July 26, 1988
and October 31, 1988:
RESOLVED, that pursuant to the authority expressly granted to and vested in
the Board of Directors of the Corporation by the provisions of the
Corporation's Certificate of Incorporation (the "Charter"), this Board of
Directors hereby authorizes the issuance of a series of preferred stock to
be designated Series A 8% Cumulative Convertible Preferred Stock, which
shall consist of 60,000 shares of the Corporation's authorized and unissued
preferred stock, $.01 par value per share (the "Series A Preferred Stock");
and
RESOLVED FURTHER, that the Board of Directors hereby fixes the designation,
powers, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof of the
shares of the Series A Preferred Stock (in addition to the designations,
powers, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, set
forth in the Charter which are applicable to any series of the preferred
stock of the Corporation), as follows:
1. Designation and Number. The designation of said series of preferred
stock shall be "Series A 8% Cumulative Convertible Preferred Stock, $.01 par
value per share" (the "Series A Preferred Stock"). The authorized number of
shares of Series A Preferred Stock shall be 60,000.
<PAGE> 22
2. Dividend Rights. Holders of Series A Preferred Stock shall be entitled
to receive, out of funds legally available therefor, cumulative cash dividends
at the annual rate of 8% simple interest per share and no more, payable when and
as declared by the Board of Directors. Such dividends shall be payable quarterly
on the last business day of March, June, September and December of each year,
commencing on December 31, 1988. Such dividends shall accrue, but without
interest, from the date of issuance of the Series A Preferred Stock, whether or
not declared, and no dividends or other distributions shall be made to the
holders of Common Stock of the Corporation (the "Common Stock") until accrued
but unpaid dividends on the Series A Preferred Stock for all past dividend
periods shall have been declared and paid or set apart unless the holders of
66 2/3% of the Series A Preferred Stock consent.
3. Liquidation Rights. Upon the voluntary or involuntary liquidation,
dissolution or winding up of the corporation, the holders of Series A Preferred
Stock shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders, after and subject to the payment
in full of all amounts required to be distributed to the holders, if any, of any
other class or series of stock of the Corporation ranking on liquidation prior
and in preference to the Series A Preferred Stock, but before any distribution
to holders of the Common Stock or any other class or series of stock ranking on
liquidation junior to the Series A Preferred Stock, an amount equal to the
initial issue price per share, plus accrued but unpaid dividends as provided in
Paragraph 2 hereof accrued and unpaid to the date of distribution, and no more.
In the event the assets of the Corporation remaining after payment of debts and
liabilities are insufficient to distribute the full preferential liquidation
amount to the holders of Series A Preferred Stock, then such assets shall be
distributed to the holders of Series A Preferred Stock in proportion to the full
preferential amounts to which they are entitled, and the holders of Common Stock
shall receive nothing. Neither the consolidation or merger of the Corporation
with or into any other corporation or corporations, nor the sale of all or
substantially all of its assets, shall be deemed to be a dissolution,
liquidation or winding up of the Corporation within the meaning of this
paragraph 3.
4. Voting Rights. The holders of Common Stock shall have the exclusive
right to notice of shareholders' meetings and exclusive voting rights and
powers, and the holders of Series A Preferred Stock shall not be entitled to any
notice of shareholders' meetings or to vote upon the election of directors or
any other matter, except where such notice or vote is required under the General
Corporation Law of the State of Delaware.
5. Redemption.
(a) From and after July 1, 1989 and prior to July 1, 1991, if the ask price
of the Common Stock for a period of twenty (20) consecutive trading days exceeds
two hundred percent
-2-
<PAGE> 23
(200%) of the Conversion Price (as defined in Paragraph 6(a) hereof), the
Corporation, at its option, may redeem the whole or any part of the Series A
Preferred Stock by paying in cash, out of funds legally available therefor, a
price per share equal to the sum of the initial issue price and the amount of
cumulative dividends as provided in Paragraph 2 hereof accrued and unpaid to the
date fixed for redemption. In case of the redemption of only a portion of the
Series A Preferred Stock, such redemption shall be effected pro rata to the
extent that this is practicable.
(b) From and after July 1, 1991, the Corporation at its option, may redeem,
at any time and from time to time, the whole or any part of the Series A
Preferred Stock by paying in cash, out of funds legally available therefor, a
price per share equal to the sum of the initial issue price and the amount of
cumulative dividends as provided in Paragraph 2 hereof accrued and unpaid to the
date fixed for redemption. In case of the redemption of only a portion of the
Series A Preferred Stock, such redemption shall be effected pro rata to the
extent that this is practicable.
(c) Notice of any proposed redemption and of the date and place thereof,
shall be mailed at least thirty (30) days before the date fixed for redemption,
postage prepaid, to each holder of record of the shares to be redeemed at his
last known post office address, as shown by the records of the Corporation. On
or after the date fixed for redemption, each holder of the shares to be redeemed
(unless he previously shall have converted said shares as provided in Paragraph
6 hereof) shall surrender the certificate evidencing such shares to the
Corporation at the place designated in such notice and, thereupon, shall be
entitled to receive payment of the redemption price without interest. In case
less than all the shares represented by any surrendered certificate are
redeemed, a new certificate shall be issued representing the unredeemed shares;
provided that, in lieu of issuing a certificate representing a fractional share
interest, the Corporation shall pay that amount of cash which bears the same
ratio to the redemption price as that fractional interest bears to one share.
(d) On or before the date fixed for redemption, the Corporation at its
option may deposit with any bank or trust company in the State of California, as
a trust fund, a sum sufficient to redeem the shares called for redemption, with
irrevocable instructions and authority to said bank or trust company to pay, on
and after the date fixed for redemption or prior thereto, the redemption price
of the shares to the holders thereof on surrender of the certificate on or after
the date of the deposit, the shares so called shall be deemed to be redeemed so
that: (i) dividends thereon shall cease to accrue, and (ii) the holders thereof
shall cease to have any rights with respect thereto, except the right to receive
from the bank or trust company payment of the redemption price without interest
on surrender of their certificates therefor and the right to convert, on or
before the date fixed for redemption, said shares as
-3-
<PAGE> 24
provided in Paragraph 6 hereof. Any funds so deposited on account of shares
converted after the deposit shall be repaid to the Corporation forthwith on the
conversion of such shares. Any funds so deposited which shall remain unclaimed
for a period of two years after the date fixed for redemption by holders of
Series A Preferred Stock that have been called for redemption shall be repaid
forthwith to the Corporation, and the Corporation and the bank or trust company
shall be relieved of all responsibility to the holder of the Series A Preferred
Stock on account of which said funds were deposited.
6. Conversion. The holders of Series A Preferred Stock at their option may
convert such shares into fully-paid and non-assessable shares of the Common
Stock of the Corporation in the manner hereinafter provided.
(a) Right to Convert. Each share of Series A Preferred Stock shall be
convertible, at the option of the holder thereof, at any time and from time to
time, into such number of fully paid and nonassessable shares of Common Stock as
is determined by dividing $50.00 by the Conversion Price (as defined below) in
effect at the time of the conversion. The price at which shares of Common Stock
shall be deliverable upon conversion of Series A Preferred Stock without the
payment of additional consideration by the holder thereof shall initially be
$.35 (the "Conversion Price"). Such initial Conversion Price, and the rate at
which shares of Series A Preferred Stock may be converted into shares of Common
Stock, shall be subject to adjustment as provided below.
(b) Adjustment to Conversion Price.
(1) Adjustment for Combinations, Consolidations, Subdivisions or Stock
Dividends of Common Stock. In case at any time the shares of Common Stock then
outstanding shall be combined into a lesser number of shares, whether by
reclassification, recapitalization, reduction of capital stock, or otherwise,
then the Conversion Price shall be proportionately increased. In case at any
time any shares of Common Stock shall be issued as a dividend on outstanding
shares of Common Stock or shall be issued upon subdivision, reclassification,
recapitalization, or otherwise of outstanding shares of Common Stock, the
Conversion Price shall be proportionately adjusted.
(2) Adjustment for Merger or Reorganization, etc. In case of the
consolidation or merger of the Corporation with or into another corporation or
the conveyance of all or substantially all of the assets of this Corporation to
another corporation, each share of Series A Preferred Stock shall thereafter be
convertible into the number of shares of stock or other securities or property
to which a holder of the number of shares of Common Stock deliverable upon
conversion of such shares of Series A Preferred Stock would have been entitled
upon such reorganization, reclassification, consolidation, merger or conveyance.
-4-
<PAGE> 25
(3) No Adjustment for Accrued But Unpaid Dividends. Upon any conversion, no
adjustment to the Conversion Price shall be made for any declared but unpaid
dividends on the Series A Preferred Stock surrendered for conversion or on the
Common Stock delivered upon conversion.
(4) Certificate as to Adjustment. Any Conversion Price determined or
adjusted as herein provided shall remain in effect until further adjustments as
required herein are made. Upon each adjustment of the Conversion Price, a
written instrument signed by an officer of the Corporation setting forth such
adjustment and the computation and a summary of the facts upon which it is based
and the resolutions, if any, of the Board of Directors passed in connection
therewith shall forthwith be prepared and maintained at the principal office of
the Corporation for inspection by the shareholders and any adjustments so
evidenced, made in good faith, shall be binding upon all shareholders and upon
the Corporation.
(c) Upon conversion of any shares of the Series A Preferred Stock, the
Holder thereof shall not be entitled to receive any accumulated, accrued or
unpaid dividends in respect of the shares so converted, provided that such
Holder shall be entitled to receive any dividends on such shares of the Series A
Preferred Stock declared prior to such conversion if such Holder held such
shares on the record date fixed for the determination of Holders of the Series A
Preferred Stock entitled to receive payment of such dividend.
(d) Method of Conversion.
(1) Any conversion of shares of Series A Preferred Stock into shares of
Common Stock shall be made on a date (the "conversion date") which is no later
than 15 days from the date upon which the certificate representing the shares to
be converted, duly endorsed or assigned (unless such endorsement or assignment
is waived by the corporation), together with a written request for conversion,
are surrendered to the Corporation at its then principal office.
(2) No fractional shares of Common Stock shall be issued upon conversion of
the Series A Preferred Stock. In lieu of any fractional shares to which the
holder would otherwise be entitled, the Corporation shall pay cash equal to such
fraction multiplied by the then effective Conversion Price.
(3) All shares of Series A Preferred Stock which shall have been
surrendered for conversion as herein provided shall no longer be deemed to be
outstanding and all rights with respect to such shares shall forthwith cease,
except for the right of the holders thereof to receive Common Stock in exchange
therefor. Any shares of Series A Preferred Stock so converted shall be
permanently retired, shall no longer be deemed outstanding and shall not under
any circumstances be reissued and the Corporation may from time to time take
such appropriate
-5-
<PAGE> 26
corporate action as may be necessary to reduce accordingly the authorized number
of shares of Series A Preferred Stock.
(4) A number of authorized shares of Common Stock sufficient to provide for
the conversion of the shares of Series A Preferred Stock outstanding shall be
reserved at all times for such conversion. If the Corporation shall propose to
issue any securities or to make any change in its capital structure which would
change the number of shares of Common Stock into which each share of Series A
Preferred Stock shall be convertible as herein provided, the Corporation shall
at the same time also make proper provision so that thereafter there shall be a
sufficient number of shares of Common Stock authorized and reserved for
conversion of the outstanding shares of Series A Preferred Stock on the new
basis.
(e) Definition of Common Stock. The term "Common Stock" as used in this
Paragraph 6 shall mean shares of the class designated as Common Stock of the
Corporation on the date shares of the Series A Preferred Stock are created or
shares of any class or classes resulting from any reclassification thereof, the
right of which to share in distributions of both earnings and assets if without
limitation in the Certificate of Incorporation of the Corporation as to any
fixed amount or percentages and which are not subject to redemption, provided
that, if at any time there shall be more than one such resulting class, the
shares of each such class then issuable on conversion of the shares of Series A
Preferred Stock shall be substantially in the proportion which the total number
of shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
7. Registration Rights. Upon conversion of the Series A Preferred Stock
into Common Stock in accordance with the provisions of Paragraph 6, the holders
of such Common Stock may request registration on Form S-3 with respect to their
Common Stock in the manner hereafter provided.
(a) Requested Registration on Form S-3.
(1) Provided that Form S-3 is then available for use by the Corporation, if
any of the holders of Common Stock issued pursuant to a conversion in accordance
with Paragraph 6 (the "Holders") shall deliver to the Corporation a written
request that the Corporation use its best efforts to effect a registration on
Form S-3 with respect to all or a part of such Common Stock, the Corporation
will:
(i) promptly give written notice of the proposed registration to all
other Holders; and
(ii) as soon as possible, use its best efforts to effect the proposed
registration on Form S-3 and to effect all registrations, qualifications or
compliances (including, without limiting the foregoing, (x) appropriate
-6-
<PAGE> 27
qualification under applicable blue sky or other state securities laws in those
jurisdictions reasonably selected by the Holders who request to participate in
such proposed registration and (y) appropriate compliance with applicable
federal and state requirements and regulations) as are reasonably necessary to
permit or facilitate the sale and distribution of all or such portion of such
Common Stock as are specified in such request, together with all or such portion
of the Common Stock of any Holders joining in such registration as are specified
in a written request received by the Corporation within fifteen (15) business
days after written notice from the Corporation is given under Paragraph
7(a)(1)(i) above.
(2) Notwithstanding the foregoing, the Corporation shall not be obligated
to take any action to effect any such registration, qualification or compliance
pursuant to this Paragraph 7(a):
(i) in any particular jurisdiction in which the Corporation would be
required to execute a general consent to service of process in effecting
such registration, qualification or compliance, unless the Corporation is
already subject to service in such jurisdiction and except as may be
required by the Securities Act; or
(ii) if the Corporation shall have initiated a registration statement
on Form S-3 at any time within the immediately preceding six month period
or the Company shall have previously initiated four registrations under
this Paragraph 7 during the period within which a holder may request a
registration under this Paragraph 7.
(3) Subject to the foregoing Paragraph 7(a)(2), the Corporation shall file
a registration statement on Form S-3, if an when available to the Corporation,
as soon as possible after receipt of the request or requests of the initiating
Holders under this Paragraph 7(a); provided, however, that if the Corporation
shall furnish to such initiating Holders a certificate signed by the President
of the Corporation stating that in the good faith judgment of the Board of
Directors of the Corporation it would be seriously detrimental to the
Corporation and its stockholders for such registration statement to be filed on
or before the date filing would be required and it is therefore essential to
defer the filing of such registration statement or if it would permit such
registration statement to include the financial information to be included in
the earlier of the next quarterly report on Form 10-Q or annual report on Form
10-K to be filed by the Corporation with the Commission, the Corporation shall
have the right to defer such filing to a date not later than one hundred
thirty-five (135) days after the receipt of such request (provided that the
Corporation shall not have the right to defer the filing of a registration
statement pursuant to this Paragraph 7(a)(3) more than once with respect to any
such request or requests relating to a particular registration.
-7-
<PAGE> 28
(4) The right of any Holder to request registration or inclusion in any
registration pursuant to this Paragraph 7 shall commence on July 1, 1989 and
terminate on the earlier of (i) the date on which all shares of Common stock
held or entitled to be held upon conversion by such Holder may be sold under
Rule 144 during any three (3) month period, or (ii) September 1, 1991.
(5) The Corporation shall not be liable in any way whatsoever for its
inability to cause such Common Stock to be registered on Form S-3, or to
maintain the effectiveness, availability or adequacy of the registration
statement on Form S-3. The Corporation reserves the right to de-register such
Common Stock subject to such registration statement. In order that the
Corporation may insure that the Common Stock issued to a Holder is sold in
accordance with applicable securities laws, each Holder must advise the
Corporate Secretary at least one business day in advance of any proposed
disposition of the common stock pursuant to the registration statement. In the
event the Corporate Secretary advises such Holder of the unavailability of the
registration statement such Holder must refrain from so disposing of the Common
Stock until the Corporate Secretary advises the Holder of the availability of
the registration statement.
(b) Selling Commissions. Each Holder who sells shares of Common Stock in
any registration pursuant to this Paragraph 7 shall be obligated to pay selling
commissions applicable to the sale of the shares of Common Stock by such Holder
and all fees and disbursements of counsel for such Holder, in proportion to the
number of shares so registered for the account of such Holder. All other
reasonable expenses in connection with such registration shall be borne by the
Corporation.
(c) Indemnification By the Corporation. The Corporation will indemnify each
Holder, with respect to which registration, qualification or compliance has been
effected pursuant to this Paragraph 7 against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Corporation of the Securities Act of 1933, as amended, (the "Securities Act")
and/or other applicable securities law, or any rule or regulation thereunder
applicable to the Corporation and relating to action or inaction required in
connection with any such registration, qualification or compliance, and will
reimburse each such Holder, for any legal and any other expenses reasonably
incurred in connection with investigating and defending any such claim, loss,
damage, liability or action, provided that the Corporation will not be
-8-
<PAGE> 29
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to the Corporation by such
Holder and stated to be specifically for use therein.
(d) Indemnification by the Holders. Each Holder will, if shares of Common
Stock held by him are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Corporation, each
of its directors and officers, each person who controls the Corporation within
the meaning of the Securities Act and the rules and regulations thereunder, and
each other such Holder against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Corporation and such Holders, directors, officers, partners, persons or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Corporation by such Holder and stated to be specifically for
use therein.
(e) Notice of Claim for Indemnification. Each party entitled to
indemnification under this Paragraph 7 (the "Indemnified Party") shall give
notice to the party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual knowledge of any claim
as to which indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld), and the
Indemnified Party may participate in such defense at such party's expense, and
provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Paragraph 7. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall
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<PAGE> 30
be reasonably required in connection with defense of such claim and litigation
resulting therefrom.
8. Subordination. The Series A Preferred Stock may be subordinated to any
series of preferred stock subsequently issued.
IN WITNESS WHEREOF, the undersigned have executed this Certificate this
22nd day of November, 1988.
/s/ NACE F. MEFFORD, JR.
-----------------------------------
Nace F. Mefford, Jr.
President
ATTEST:
/s/ MICHAEL J. ALOIA
- ------------------------------------
Michael J. Aloia
Secretary
-10-
<PAGE> 31
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "HARCOR ENERGY, INC.", FILED IN THIS OFFICE ON THE SIXTH DAY OF JUNE, A.D.
1989, AT 9 O'CLOCK A.M.
<TABLE>
<S> <C> <C>
2126867 8100 [SEAL] /s/ EDWARD J. FREEL
950156132 -----------------------------
Edward J. Freel, Secretary of
State
AUTHENTICATION: 7571626
DATE: 07-13-95
</TABLE>
<PAGE> 32
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
HARCOR ENERGY, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, (the
"Corporation").
DOES HEREBY CERTIFY:
FIRST: That by the unanimous written consent of the Board of Directors of
the Corporation resolutions were duly adopted setting forth a proposed amendment
of the Certificate of Incorporation of the Corporation declaring said amendment
to be advisable and stating that said amendment should be brought before the
annual meeting of the stockholders of the Corporation for consideration thereof.
The resolution setting forth the proposed amendment is as follows:
RESOLVED, that Part A of Article IV of the Certificate of Incorporation of
the Corporation be amended so that said Part of said Article shall be and
read as follows:
"A. HarCor Energy, Inc. ("Corporation") is authorized to issue two classes
of shares of stock to be designated, respectively, the "Common Stock" and
the "Preferred Stock". The total number of shares of stock which the
Corporation shall have the authority to issue is One Hundred One Million
Five Hundred Thousand (101,500,000) shares. The total number of shares of
Common Stock which the Corporation shall have the authority to issue is One
Hundred Million (100,000,000) shares, par value $0.01 per share. The total
number of shares of Preferred Stock which the Corporation shall have the
authority to issue is One Million Five Hundred Thousand (1,500,000) shares,
par value $0.01 per share."
-1-
<PAGE> 33
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
the annual meeting of the stockholders of the Corporation was duly called and
held, upon notice in accordance with Section 222 of the General Corporation Law
of the State of Delaware at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced under or
by reason of said amendment.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by Francis H. Roth, its President, and Michael J. Aloia, its Secretary,
this 31st day of May, 1989.
By: /s/ FRANCIS H. ROTH
-------------------------------
Francis H. Roth, President
Attest: /s/ MICHAEL J. ALOIA
---------------------------
Michael J. Aloia, Secretary
-2-
<PAGE> 34
State of Delaware PAGE 1
Office of the Secretary of State
-----------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "HARCOR ENERGY, INC.", FILED IN THIS OFFICE ON THE NINTH DAY OF
APRIL, A.D. 1991, AT 9 O'CLOCK A.M.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7571627
2126867 8100
DATE: 07-13-95
950156132
<PAGE> 35
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 04/08 1991
910995342 - 2126867
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
HARCOR ENERGY, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, (the
"Corporation")
DOES HEREBY CERTIFY:
FIRST: That by the unanimous written consent of the Board of Directors
of the Corporation resolutions were duly adopted setting forth a proposed
amendment of the Certificate of Incorporation of the Corporation declaring said
amendment to be advisable and stating that said amendment should be brought
before the stockholders of the Corporation for consideration thereof. The
resolution setting forth the proposed amendment is as follows:
RESOLVED, that Part A of Article IV of the Certificate
of Incorporation of the Corporation be amended so that
said Part of said Article shall be and read and follows:
"A. HarCor Energy, Inc. ("Corporation") is authorized to
issue two classes of shares of stock to be designated,
respectively, the "Common Stock" and the "Preferred Stock".
The total number of shares of stock which the Corporation
shall have the authority to issue is Eleven Million Five
Hundred Thousand (11,500,000) shares. The total number of
shares of Common Stock which the Corporation shall have the
authority to issue is Ten Million (10,000,000) shares, par
value $0.10 per share. The total number of shares of
Preferred Stock which the Corporation shall have the
authority to issue is One Million Five Hundred Thousand
(1,500,000) shares, par value $0.01 per share."
-1-
<PAGE> 36
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, written consent to the amendment was obtained from a majority of
stockholders of the corporation in accordance with Section 228 of the general
Corporation law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced under
or by reason of said amendment.
In WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by Francis H. Roth, its President, and Gary Peck, its Secretary, this
8th day of April, 1991.
By: /s/ FRANCIS H. ROTH
---------------------------------
Francis H. Roth, President
Attest: /s/ GARY PECK
---------------------------------
Gary Peck, Secretary
-2-
<PAGE> 37
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "HARCOR ENERGY, INC.", FILED IN THIS OFFICE ON THE SIXTEENTH DAY
OF APRIL, A.D. 1993, AT 11 O'CLOCK A.M.
<TABLE>
<S> <C> <C>
2126867 8100 [SEAL] /s/ EDWARD J. FREEL
950156132 -----------------------------
Edward J. Freel, Secretary of
State
AUTHENTICATION: 7571628
DATE: 07-13-95
</TABLE>
<PAGE> 38
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND
RIGHTS OF SERIES B CONVERTIBLE PREFERRED STOCK
PURSUANT TO SECTION 151 OF THE
DELAWARE GENERAL CORPORATION LAW
The undersigned Chairman of the Board and Secretary, respectively, of
HarCor Energy, Inc., a Delaware corporation (the "Corporation") certify that
pursuant to authority granted to and vested in the Board of Directors of the
Corporation by the provisions of the Certificate of Incorporation and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, its Board of Directors has duly adopted the following
resolutions creating the Series B Convertible Preferred Stock.
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation by Article IV of the Corporation's Certificate of
Incorporation, a series of preferred stock of the Corporation be, and it hereby
is, created out of the authorized but unissued shares of the capital stock of
the Corporation, such series to be designated Series B Convertible Preferred
Stock (the "Series B Preferred Stock"), to consist of 30,000 shares, par value
$.01 per share, of which the preferences and relative and other rights, and the
qualifications, limitations or restrictions thereof, shall be (in addition to
those set forth in the Corporation's Certificate of Incorporation) as follows:
1. Certain Definitions.
Unless the context otherwise requires, the terms defined in this paragraph
1 shall have, for all purposes of this resolution, the meanings herein
specified.
Common Stock. The term "Common Stock" shall mean all shares now or
hereafter authorized of any class of Common Stock of the Corporation and any
other stock of the Corporation, howsoever designated, authorized after the Issue
Date, which has the right (subject always to prior rights of any class or series
of preferred stock) to participate in the distribution of the assets and
earnings of the Corporation without limit as to per share amount.
Conversion Date. The term "Conversion Date" shall have the meaning set
forth in subparagraph 5(d) below.
Conversion Price. The term "Conversion Price" shall mean the price per
share of Common Stock used to determine the number of shares of Common Stock
deliverable upon conversion of a share of the Series B Preferred Stock, which
price shall initially be
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3.90 per share, subject to adjustment in accordance with the provisions of
paragraph 5 below.
Current Market Price. The term "Current Market Price" shall have the
meaning set forth in subparagraph 5(g) below.
Dividend Payment Date. The term "Dividend Payment Date" shall have the
meaning set forth in subparagraph 2(a) below.
Dividend Period. The term "Dividend Period" shall have the meaning set
forth in subparagraph 2(a) below.
Final Redemption Date. The term "Final Redemption Date" shall have the
meaning set forth in subparagraph 4(e) below.
Issue Date. The term "Issue Date" shall mean the date that shares of Series
B Preferred Stock are first issued by the Corporation.
Junior Stock. The term "Junior Stock" shall mean, for purposes of paragraph
2 below, the Common Stock and any other class or series of stock of the
Corporation issued after the Issue Date not entitled to receive any dividends in
any Dividend Period unless all dividends required to have been paid or declared
and set apart for payment on the Series B Preferred Stock shall have been so
paid or declared and set apart for payment and, for purposes of paragraph 3
below, the Common Stock and any other class or series of stock of the
Corporation issued after the Issue Date not entitled to receive any assets upon
the liquidation, dissolution or winding up of the affairs of the Corporation
until the Series B Preferred Stock shall have received the entire amount to
which such stock is entitled upon such liquidation, dissolution or winding up.
Parity Stock. The term "Parity Stock" shall mean, for purposes of paragraph
2 below the Series A 8% Cumulative Convertible Preferred Stock of the
Corporation and, any other class or series of stock of the Corporation issued
after the Issue Date entitled to receive payment of dividends on a parity with
the Series B Preferred Stock and, for purposes of paragraph 3 below, the Series
A 8% Cumulative Convertible Preferred Stock of the Corporation and any other
class or series of stock of the Corporation issued after the Issue Date entitled
to receive assets upon the liquidation, dissolution or winding up of the affairs
of the Corporation on a parity with the Series B Preferred Stock.
Purchase Price. The term "Purchase Price" shall mean $100.00 per share.
Redemption Agent. The term "Redemption Agent" shall have the meaning set
forth in subparagraph 4(d) below.
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Redemption Date. The term "Redemption Date" shall have the meaning set
forth in subparagraph 4(c) below.
Redemption Price. The term "Redemption Price" shall mean the price to be
paid upon redemption of the Series B Preferred Stock, as determined in
accordance with subparagraph 4(a) below.
Senior Stock. The term "Senior Stock" shall mean, for purposes of paragraph
2 below, any class or series of stock of the Corporation issued after the Issue
Date ranking senior to the Series B Preferred Stock in respect of the right to
receive dividends, and, for purposes of paragraph 3 below, any class or series
of stock of the Corporation issued after the Issue Date ranking senior to the
Series B Preferred Stock in respect of the right to receive assets upon the
liquidation, dissolution or winding up of the affairs of the Corporation.
Subsidiary. The term "Subsidiary" shall mean any corporation of which
shares of stock possessing at least a majority of the general voting power in
electing the board of directors are, at the time as of which any determination
is being made, owned by the Corporation, whether directly or indirectly through
one or more Subsidiaries.
2. Dividends.
(a) Subject to the prior preferences and other rights of any Senior Stock,
the holders of the Series B Preferred Stock shall be entitled to receive, out of
funds legally available for that purpose, cash dividends at the rate of $8.00
per share per annum, and no more. Such dividends shall be cumulative from the
Issue Date and shall be payable in arrears, when and as declared by the Board of
Directors, on March 31, June 30, September 30 and December 31 of each year (each
such date being herein referred to as a "Dividend Payment Date"), commencing on
June 30, 1993. The quarterly period between consecutive Dividend Payment Dates
shall hereinafter be referred to as a "Dividend Period." Each such dividend
shall be paid to the holders of record of the Series B Preferred Stock as their
names appear on the share register of the Corporation on the corresponding
Record Date. As used above, the term "Record Date" means, with respect to the
dividend payable on March 31, June 30, September 30 and December 31,
respectively, of each year, the preceding March 15, June 15, September 15 and
December 15, or such other record date designated by the Board of Directors of
the Corporation with respect to the dividend payable on such respective Dividend
Payment Date. Dividends on account of arrears for any past Dividend Periods may
be declared and paid at any time, without reference to any Dividend Payment
Date, to holders of record on such date, not exceeding 50 days preceding the
payment date thereof, as may be fixed by the Board of Directors.
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(b) In the event that full cash dividends are not paid or made available to
the holders of all outstanding shares of the Series B Preferred Stock and of any
Parity Stock, and funds available shall be insufficient to permit payment in
full in cash to all such holders of the preferential amounts to which they are
then entitled, the entire amount available for payment of cash dividends shall
be distributed among the holders of the Series B Preferred Stock and of any
Parity Stock ratably in proportion to the full amount to which they would
otherwise be respectively entitled, any remainder not paid in cash to the
holders of the Series B Preferred Stock shall cumulate as provided in
subparagraph 2(c) below.
(c) If, on any Dividend Payment Date, the holders of the Series B Preferred
Stock shall not have received the full dividends provided for in the other
provisions of this paragraph 2, then such dividends shall cumulate without
interest, whether or not earned or declared, with additional dividends thereon
for each succeeding full Dividend Period during which such dividends shall
remain unpaid. Unpaid dividends for any period less than a full Dividend Period
shall cumulate on a day-to-day basis and shall be computed on the basis of a 360
day year.
(d) So long as any shares of the Series B Preferred Stock shall be
outstanding, the Corporation shall not declare or pay on any Junior Stock any
dividend whatsoever, whether in cash, property or otherwise (other than
dividends payable in shares of the class or series upon which such dividends are
declared or paid, or payable in shares of Common Stock with respect to Junior
Stock other than Common Stock, together with cash in lieu of fractional shares),
nor shall the Corporation make any distribution on any Junior Stock, nor shall
any Junior Stock be purchased or redeemed by the Corporation or any Subsidiary,
nor shall any monies be paid or made available for a sinking fund for the
purchase or redemption of any Junior Stock, unless all dividends to which the
holders of the Series B Preferred Stock shall have been entitled for all
previous Dividend Periods shall have been paid or declared and a sum of money
sufficient for the payment thereof set apart.
3. Distributions Upon Liquidation, Dissolution or Winding Up.
In the event of any voluntary or involuntary liquidation, dissolution or
other winding up of the affairs of the Corporation, subject to the prior
preferences and other rights of any Senior Stock, but before any distribution or
payment shall be made to the holders of Junior Stock, the holders of the Series
B Preferred Stock shall be entitled to be paid the Purchase Price of all
outstanding shares of the Series B Preferred Stock as of the date of such
liquidation or dissolution or such other winding up, plus any accrued but unpaid
dividends, if any, to such date, and no more, in cash or in property taken at
its fair value as determined by the Board of Directors, or both, at the election
of the Board of Directors. If such payment shall have been made in full to the
holders of the Series B Preferred Stock, and if payment shall have been made in
full to the holders of any Senior
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Stock and Parity Stock of all amounts to which such holders shall be entitled,
the remaining assets and funds of the Corporation shall be distributed among the
holders of Junior Stock, according to their respective shares and priorities.
If, upon any such liquidation, dissolution or other winding up of the affairs of
the Corporation, the net assets of the Corporation distributable among the
holders of all outstanding shares of the Series B Preferred Stock and of any
Parity Stock shall be insufficient to permit the payment in full to such holders
of the preferential amounts to which they are entitled, then the entire net
assets of the Corporation remaining after the distributions to holders of any
Senior Stock of the full amounts to which they may be entitled shall be
distributed among the holders of the Series B Preferred Stock and of any Parity
Stock ratably in proportion to the full amounts to which they would otherwise be
respectively entitled. Neither the consolidation or merger of the Corporation
into or with another corporation or corporations, nor the sale of all or
substantially all of the assets of the Corporation to another corporation or
corporations shall be deemed a liquidation, dissolution or winding up of the
affairs of the Corporation within the meaning of this paragraph 3.
4. Redemption By the Corporation.
(a) The Series B Preferred Stock shall not be redeemed in whole or in part
prior to January 1, 1995. On and after January 1, 1995, the Series B Preferred
Stock may be redeemed by the Corporation in cash at any time in whole or,
(subject to the last sentence of subparagraph 4(b) below) from time to time in
part, at the option of the Corporation, at a price of $150.00 per share (the
"Redemption Price") on any date that the closing price per share of Common Stock
has been at least $5.85 (as adjusted for any stock dividend, split, combination
or reclassification) for at least 20 of the 30 consecutive trading days ending
on the fifth day prior to the notice of redemption.
(b) If less than all of the outstanding shares of the Series B Preferred
Stock are to be redeemed, such shares shall be redeemed pro rata to the extent
reasonably practicable.
(c) Notice of every proposed redemption of the Series B Preferred Stock
shall be sent by or on behalf of the Corporation, by first class mail, postage
prepaid, to the holders of record of the shares to be redeemed at their
respective addresses as they shall appear on the records of the Corporation, not
less than thirty (30) days nor more than sixty (60) days prior to the date fixed
for redemption (the "Redemption Date") (i) notifying such holders of the
election of the Corporation to redeem such shares and of the date of redemption,
(ii) stating the date on which the shares cease to be convertible, and the
Conversion Price, (iii) stating the place or places at which the shares called
for redemption shall, upon presentation and surrender of the certificates
evidencing such shares, be redeemed, and the Redemption Price therefor, and (iv)
stating the name and address of any Redemption Agent selected by the Corporation
in accordance with subparagraph 4(d) below, and the name and address of the
Corporation's transfer agent for the Series B
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Preferred Stock. The Corporation may act as the transfer agent for the Series B
Preferred Stock.
(d) The Corporation may act as the redemption agent to redeem the Series B
Preferred Stock. The Corporation may also appoint as its agent for such purpose
a bank or trust company in good standing, organized under the laws of the United
States of America or any jurisdiction thereof, and having capital, surplus and
undivided profits aggregating at least Twenty Million Dollars ($20,000,000), and
may appoint any one or more additional such agents which shall in each case be a
bank or trust company in good standing organized under the laws of the United
States of America or of any jurisdiction thereof, having an office or offices in
the City of Houston, Texas, or such other place as shall have been designated by
the Corporation, and having capital, surplus and undivided profits aggregating
at least Twenty Million Dollars ($20,000,000). The Corporation or such bank or
trust company are hereinafter referred to as the "Redemption Agent". Following
such appointment and prior to any redemption, the Corporation shall deliver to
the Redemption Agent irrevocable written instructions authorizing the Redemption
Agent, on behalf and at the expense of the Corporation, to cause such notice of
redemption to be duly mailed as herein provided as soon as practicable after
receipt of such irrevocable instructions and in accordance with the above
provisions. All funds necessary for the redemption shall be deposited with the
Redemption Agent in trust at least two business days prior to the Redemption
Date, for the pro rata benefit of the holders of the shares so called for
redemption, so as to be and continue to be available therefor. Neither failure
to mail any such notice to one or more such holders nor any defect in any notice
shall affect the sufficiency of the proceedings for redemption as to other
holders.
(e) If notice of redemption shall have been given as hereinbefore provided,
and the Corporation shall not default in the payment of the Redemption Price,
then each holder of shares called for redemption shall be entitled to all
preferences, relative and other rights accorded by this resolution until and
including the date prior to the Redemption Date, except as set forth in
paragraph 5 hereof. If the Corporation shall default in making payment or
delivery as aforesaid on the Redemption Date, then each holder of the shares
called for redemption shall be entitled to all preferences, relative and other
rights accorded by this resolution until and including the date prior to the
date (the "Final Redemption Date") when the Corporation makes payment or
delivery as aforesaid to the holders of the Series B Preferred Stock, except as
set forth in paragraph 5 hereof. From and after the Redemption Date or, if the
Corporation shall default in making payment or delivery as aforesaid, the Final
Redemption Date, the shares called for redemption shall no longer be deemed to
be outstanding, and all rights of the holders of such shares shall cease and
terminate, except the right of the holders of such shares, upon surrender of
certificates therefor, to receipt of amounts to be paid hereunder. The deposit
of monies in trust with the Redemption Agent shall be irrevocable except that
the Corporation shall be entitled to receive from the Redemption Agent the
interest or other earnings, if any, earned on any monies so deposited in trust,
and the holders of any shares redeemed shall
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have no claim to such interest or other earnings, and any balance of monies so
deposited by the Corporation and unclaimed by the holders of the Series B
Preferred Stock entitled thereto at the expiration of two (2) years from the
Redemption Date (or the Final Redemption Date, as applicable) shall be repaid,
together with any interest or other earnings thereon, to the Corporation, and
after any such repayment, the holders of the shares entitled to the funds so
repaid to the Corporation shall look only to the Corporation for such payment,
without interest.
5. Conversion Rights.
The Series B Preferred Stock shall be convertible into Common Stock as
follows:
(a) Optional Conversion. Subject to and upon compliance with the provisions
of this paragraph 5, the holder of any shares of the Series B Preferred Stock
shall have the right at such holder's option, at any time or from time to time,
to convert any and all of the shares of Series B Preferred Stock, into fully
paid and nonassessable shares of Common Stock at the Conversion Price (as
hereinafter defined) in effect on the Conversion Date (as hereinafter defined)
upon the terms hereinafter set forth. In case any share of Series B Preferred
Stock is called for redemption, such right of conversion shall terminate at the
close of business on the fifth day prior to the Redemption Date or, if the
Corporation shall default in the payment of the Redemption Price, at the close
of business on the fifth day prior to the Final Redemption Date.
(b) Automatic Conversion. Each outstanding share of Series B Preferred
Stock shall automatically be converted, without any further act of the
Corporation or its stockholders, into fully paid and nonassessable shares of
Common Stock at the Conversion Price then in effect (i) on the first date after
December 31, 1996 until December 31, 1998 that the closing price per share of
Common Stock has been at least $5.85 (as adjusted for any stock dividend, split,
combination or reclassification) for 20 of 30 consecutive trading days; or (ii)
on December 31, 1998.
(c) Conversion Price. Each share of Series B Preferred Stock shall be
converted into a number of shares of Common Stock determined by dividing (i)
Purchase Price by (ii) the Conversion Price in effect on the Conversion Date.
The Conversion Price at which shares of Common Stock shall initially be issuable
upon conversion of the shares of the Series B Preferred Stock shall be $3.90.
The Conversion Price shall be subject to adjustment as set forth in subparagraph
5(f). No payment or adjustment shall be made for any dividends on the Series B
Preferred Stock or Common Stock issuable upon such conversion.
(d) Mechanics of Conversion. The holder of any shares of Series B Preferred
Stock may exercise the conversion right specified in subparagraph 5(a) by
surrendering to the Corporation or any transfer agent of the Corporation the
certificate or certificates for
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<PAGE> 45
the shares to be converted, accompanied by written notice specifying the number
of shares to be converted. Upon the occurrence of the event specified in
subparagraph 5(b), the outstanding shares of Series B Preferred Stock shall be
converted automatically without any further action by the holders of such shares
and whether or not the certificates representing such shares are surrendered to
the Corporation or its transfer agent; provided that the Corporation shall not
be obligated to issue to any such holder certificates evidencing the shares of
Common Stock issuable upon such conversion unless certificates evidencing the
shares of Series B Preferred Stock are either delivered to the Corporation or
any transfer agent of the Corporation. Conversion shall be deemed to have been
effected on the date when delivery of notice of an election to convert and
certificates for shares is made or on the date of the occurrence of the event
specified in subparagraph 5(b), as the case may be, and such date is referred to
herein as the "Conversion Date," Subject to the provisions of subparagraph
5(f)(v), as promptly as practicable thereafter (and after surrender of the
certificate or certificates representing shares of Series B Preferred Stock to
the Corporation or any transfer agent of the Corporation in the case of
conversions pursuant to subparagraph 5(b)) the Corporation shall issue and
deliver to or upon the written order of such holder a certificate or
certificates for the number of full shares of Common Stock to which such holder
is entitled and a check or cash with respect to any fractional interest in a
share of Common Stock as provided in subparagraph 5(e). Subject to the
provisions of subparagraph 5(f)(v), the person in whose name the certificate or
certificates for Common Stock are to be issued shall be deemed to have become a
holder of record of such Common Stock on the applicable Conversion Date. Upon
conversion of only a portion of the number of shares covered by a certificate
representing shares of Series B Preferred Stock surrendered for conversion (in
the case of conversion pursuant to subparagraph 5(a)), the Corporation shall
issue and deliver to or upon the written order of the holder of the certificate
so surrendered for conversion, at the expense of the Corporation, a new
certificate covering the number of shares of Series B Preferred Stock
representing the unconverted portion of the certificate so surrendered.
(e) Fractional Shares. No fractional shares of Common Stock or scrip shall
be issued upon conversion of shares of Series B Preferred Stock. If more than
one share of Series B Preferred Stock shall be surrendered for conversion at any
one time by the same holder, the number of full shares of Common Stock issuable
upon conversion thereof shall be computed on the basis of the aggregate number
of shares of Series B Preferred Stock so surrendered. Instead of any fractional
shares of Common Stock which would otherwise be issuable upon conversion of any
shares of Series B Preferred Stock, the Corporation shall pay a cash adjustment
in respect of such fractional interest in an amount equal to that fractional
interest of the then Current Market Price.
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(f) Conversion Price Adjustments. The Conversion Price shall be subject to
adjustment from time to time as follows:
(i) Stock Dividends, Subdivisions, Reclassifications or Combinations.
If the Corporation shall (1) declare a dividend or make a distribution on
its Common Stock in shares of its Common Stock, (2) subdivide or reclassify
the outstanding shares of Common Stock into a greater number of shares, or
(3) combine or reclassify the outstanding Common Stock into a smaller
number of shares, the Conversion Price in effect at the time of the record
date for such dividend or distribution or the effective date of such
subdivision, combination or reclassification shall be proportionately
adjusted so that the holder of any shares of Series B Preferred Stock
surrendered for conversion after such date shall be entitled to receive the
number of shares of Common Stock which he would have owned or been entitled
to receive had such Series B Preferred Stock been converted immediately
prior to such date. Successive adjustments in the Conversion Price shall be
made whenever any event specified above shall occur.
(ii) Other Distributions. In case the Corporation shall fix a record
date for the making of a distribution to all holders of shares of its
Common Stock (1) of shares of any class other than its Common Stock or (2)
of evidence of indebtedness of the Corporation or any Subsidiary or (3) of
assets (excluding cash dividends or distributions, and dividends or
distributions referred to in subparagraph 5(f)(i) above), or (4) of rights
or warrants each holder of a share of Series B Preferred Stock shall, upon
the exercise of his right to convert after such record date, receive, in
addition to the shares of Common Stock to which he is entitled, the amount
of such assets (or, at the option of the Corporation, the sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) that would have been distributed to such
holder if he had exercised his right to convert immediately prior to the
record date for such determination.
(iii) Consolidation, Merger, Sale, Lease or Conveyance. In case of any
consolidation with or merger of the Corporation with or into another
corporation, or in case of any sale, lease or conveyance to another
corporation of the assets of the Corporation as an entirety or
substantially as an entirety, each share of Series B Preferred Stock shall
after the date of such consolidation, merger, sale, lease or conveyance be
convertible into the number of shares of stock or other securities or
property (including cash) to which the Common Stock issuable (at the time
of such consolidation, merger, sale, lease or conveyance) upon conversion
of such share of Series B Preferred Stock would have been entitled upon
such consolidation, merger, sale, lease or conveyance. In any such case, if
necessary, the provisions set forth herein with respect to the rights and
interests thereafter of the holders of the shares of Series B Preferred
Stock shall be appropriately adjusted so as to be applicable, as nearly as
may reasonably be, to any shares of stock or other securities or property
thereafter deliverable on the conversion of the shares of Series B
Preferred Stock.
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(iv) Special Adjustment of Conversion Price. Notwithstanding the other
provisions of this subparagraph (f), in the event of a Corporate Change (as
defined herein) or an Ownership Change (as herein defined), the Conversion
Price on the date of occurrence of such event shall be the Current Market
Price, if the Current Market Price is less that the Conversion Price in
effect prior to such date. A "Corporate Change" shall mean a consolidation
with or merger of the Corporation with or into another corporation or
entity, or any sale, lease or conveyance to another corporation or entity
of the assets of the Corporation as an entirety or substantially as an
entirety, in any of which transactions the stockholders of the Corporation
after completion of any such transaction own less than fifty percent (50%)
of the voting power in the election of directors generally of the other
corporation or entity. An "Ownership Change" with respect to the
Corporation shall be deemed to have occurred at such time as any person
(other than Mark G. Harrington) together with any of its Affiliates or
Associates (as defined below) becomes the beneficial owner, directly or
indirectly, of more than 50% of the outstanding Common Stock of the
Corporation pursuant to a transaction that does not constitute a Corporate
Change with respect to the Corporation. An "Affiliate" of a specified
person is a person that directly or indirectly controls, or is controlled
by, or is under common control with, the person specified. An "Associate"
of a person means (1) any corporation or organization, other than the
Corporation or any majority owned subsidiary of the Corporation, of which
the person is an officer or partner or is, directly or indirectly, the
beneficial owner of 10% or more of any class of equity securities; (2) any
trust or estate in which the person has a substantial beneficial interest
or as to which the person serves as trustee or in a similar fiduciary
capacity, and (3) any relative or spouse of the person or any relative of
the spouse, who has the same home as the person or who is a director or
officer of the person or any of its parents or subsidiaries. As used
herein, a person shall be deemed to have "beneficial ownership" with
respect to, and shall be deemed to "beneficially own," any securities of
the Corporation in accordance with Section 13 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations (including Rule
13d-3, Rule 13d-5 and any successor rules) promulgated by the Securities
and Exchange Commission thereunder.
(v) Rounding of Calculations; Minimum Adjustment. All calculations
under the subparagraph (f) shall be made to the nearest cent or to the
nearest one hundredth (1/100th) of a share, as the case may be. Any
provision of this paragraph 5 to the contrary notwithstanding, no
adjustment in the Conversion Price shall be made if the amount of such
adjustment would be less than $0.05 until the end of three years after such
adjustment would otherwise have been required, but any such amount shall be
carried forward and an adjustment with respect thereto shall be made at the
time of and together with any subsequent adjustment which, together with
such amount any other amount or amounts so carried forward, shall aggregate
$0.05 or more.
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(vi) Timing of Issuance of Additional Common Stock Upon Certain
Adjustments. In any case in which the provisions of this subparagraph (f)
shall require that any adjustment shall become effective immediately after
a record date for an event, the Corporation may defer until the occurrence
of such event (A) issuing to the holder of any share of Series B Preferred
Stock converted after such record date and before the occurrence of such
event the additional shares of Common Stock issuable upon such conversion
by reason of the adjustment required by such event over and above the
shares of Common Stock issuable upon such conversion before giving effect
to such adjustment and (B) paying to such holder any amount of cash in lieu
of a fractional share of Common Stock pursuant to subparagraph (e) of this
paragraph 5, provided that the Corporation upon request shall deliver to
such holder a due bill or other appropriate instrument evidencing such
holder's right to receive such additional shares, and such cash, upon the
occurrence of the event requiring such adjustment.
(g) Current Market Price. The Current Market Price at any date shall mean,
in the event the Common Stock is publicly traded, the average of the daily
closing prices per share of Common Stock for 30 consecutive trading days ending
no more than 15 business days before such date (as adjusted for any stock
dividend, split, combination or reclassification that took effect during such 30
business day period). The closing price for each day shall be the last reported
sale price regular way or, in case no such reported sale takes place on such
day, the average of the last closing bid and asked prices regular way, in either
case on the principal national securities exchange on which the Common Stock is
listed or admitted to trading, or if not listed or admitted to trading on any
national securities exchange, the closing sale price for such day reported by
NASDAQ, if the Common Stock is traded over-the-counter and quoted on the
National Market System, or if the Common Stock is so traded, but not so quoted,
the average of the closing reported bid and asked prices of the Common Stock as
reported by NASDAQ or any comparable system or, if the Common Stock is not
listed on NASDAQ or any comparable system, the average or the closing bid and
asked prices as furnished by two members of the National Association of
Securities Dealers, Inc. selected from time to time by the Corporation for that
purpose. If the Common Stock is not traded in such manner that the quotations
referred to above are available for the period required hereunder, Current
Market Price per share of Common Stock shall be deemed to be the fair value as
determined by the Board of Directors, irrespective of any accounting treatment.
(h) Statement Regarding Adjustments. Whenever the Conversion Price shall be
adjusted as provided in subparagraph 5(f), the Corporation shall forthwith file,
at the office of any transfer agent for the Series B Preferred Stock and at the
principal office of the Corporation, a statement showing in detail the facts
requiring such adjustment and the Conversion Price that shall be in effect after
such adjustment, and the Corporation shall also cause a copy of such statement
to be sent by mail, first class postage prepaid, to each holder of shares of
Series B Preferred Stock at its address appearing on the Corporation's records.
Each such statement shall be signed by the Corporation's
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independent public accountants, if applicable. Where appropriate, such copy may
be given in advance and may be included as part of a notice required to be
mailed under the provisions of subparagraph 5(i).
(i) Notice to Holders. In the event the Corporation shall propose to take
any action of the type described in clause (i), (ii) or (iii) of subparagraph
5(f), the Corporation shall give notice to each holder of shares of Series B
Preferred Stock, in the manner set forth in subparagraph 5(h), which notice
shall specify the record date, if any, with respect to any such action and the
approximate date on which such action is to take place. Such notice shall also
set forth such facts with respect thereto as shall be reasonably necessary to
indicate the effect of such action (to the extent such effect may be known at
the date of such notice) on the Conversion Price and the number, kind or class
of shares or other securities or property which shall be deliverable upon
conversion of shares of Series B Preferred Stock. In the case of any action
which would require the fixing of a record date, such notice shall be given at
least 10 days prior to the date so fixed, and in case of all other action, such
notice shall be given at least 15 days prior to the taking of such proposed
action. Failure to give such notice, or any defect therein, shall not affect the
legality or validity of any such action.
(j) Treasury Stock. For the purposes of this paragraph 5, the sale or other
disposition of any Common Stock theretofore held in the Corporation's treasury
shall be deemed to be an issue thereof.
(k) Costs. The Corporation shall pay all documentary, stamp, transfer or
other transactional taxes attributable to the issuance or delivery of shares of
Common Stock upon conversion of any shares of Series B Preferred Stock; provided
that the Corporation shall not be required to pay any taxes which may be payable
in respect of any transfer involved in the issuance or delivery of any
certificate for such shares in a name other than that of the holder of the
shares of Series B Preferred Stock in respect of which such shares are being
issued.
(l) Reservation of Shares. The Corporation shall reserve at all times so
long as any shares of Series B Preferred Stock remain outstanding, free from
preemptive rights, out of its treasury stock (if applicable) or its authorized
but unissued shares of Common Stock, or both, solely for the purpose of
effecting the conversion of the shares of Series B Preferred Stock, sufficient
shares of Common Stock to provide for the conversion of all outstanding shares
of Series B Preferred Stock.
(m) Valid Issuance. All shares of Common Stock which may be issued upon
conversion of the shares of Series B Preferred Stock will upon issuance by the
Corporation by duly and validly issued, fully paid and nonassessable and free
from all taxes, liens and charges with respect to the issuance thereof, and the
Corporation shall take no action
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<PAGE> 50
which will cause a contrary result (including, without limitation, any action
which would cause the Conversion Price to be less than the par value, if any, of
the Common Stock).
6. Voting Rights.
(a) In addition to any other rights provided in the Corporation's Bylaws or
by law, each share of Series B Preferred Stock shall entitle the holder thereof
to such number of votes per share as shall equal the whole number of shares of
Common Stock into which each share of Series B Preferred Stock is then
convertible, and each share of Series B Preferred Stock shall be entitled to
vote on all matters as to which holders of Common Stock shall be entitled to
vote, in the same manner and with the same effect as such holders of Common
Stock, voting together with the holders of Common Stock as one class, except for
all the matters set forth in this paragraph 6 on which the Series B Preferred
Stock shall have class voting rights and in such instance the Series B Preferred
Stock shall not vote together with the Common Stock. In all cases where the
holders of shares of Series B Preferred Stock have the right to vote separately
as a class, such holders shall be entitled to one vote for each share of Series
B Preferred Stock held by them respectively.
(b) If and whenever the Corporation shall have failed to declare and pay in
cash the full amount of dividends payable on the Series B Preferred Stock on any
two (2) Dividend Payment Dates, then and in such event the holders of the Series
B Preferred Stock, voting separately as a class, shall be entitled at the next
annual meeting of the stockholders of the Corporation or at any special meeting
to elect two (2) directors. Upon election, such directors shall become
additional directors of the Corporation, and the authorized number of directors
of the Corporation shall thereupon be automatically increased by such number of
directors. Such right of the holders of Series B Preferred Stock to elect
directors may be exercised until all dividends in default on the Series B
Preferred Stock shall have been paid in full, and dividends for the current
Dividend Period declared and funds therefor set apart, and when so paid and set
apart, the right of the holders of Series B Preferred Stock to elect such number
of directors shall cease, the term of such directors shall thereupon terminate,
and the authorized number of directors of the Corporation shall thereupon return
to the number of authorized directors otherwise in effect, but subject always to
the same provisions for the vesting of such special voting rights in the case of
any such future dividend default or defaults. The fact that dividends have been
paid and set apart as required by the preceding sentence shall be evidenced by a
certificate executed by the Chief Executive Officer and the Chief Financial
Officer of the Corporation and delivered to the Board of Directors or until
their respective successors shall be elected or appointed and qualify.
At any time when such special voting rights have been so vested in the
holders of the Series B Preferred Stock, the Secretary of the Corporation may,
and, upon the written request of the holders of record of 10% or more the number
of shares of the Series B
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<PAGE> 51
Preferred Stock then outstanding addressed to such Secretary at the principal
office of the Corporation, shall, call a special meeting of the holders of the
Series B Preferred Stock for the election of the directors to be elected by them
as hereinabove provided, to be held in the case of such written request within
forty (40) days after delivery of such request, and in either case to be held at
the place and upon the notice provided by law and in the Corporation's By-Laws
for the holding of meetings of stockholders; provided however that the Secretary
shall not be required to call such a special meeting if any such request is
received less than ninety (90) days before the date fixed for the next ensuing
annual or special meeting of stockholders.
(c) If, at any time when the holders of the Series B Preferred Stock are
entitled to elect directors pursuant to the foregoing provisions of this
paragraph 6, the holders of any one or more additional series of Preferred Stock
are entitled to elect directors by reason of any default or event specified in
the certificate of designation for such series, and if the terms for such other
additional series so permit, the voting rights of the two or more series then
entitled to vote shall be combined (with each series having a number of votes
proportional to the aggregate liquidation preference of its outstanding shares).
In such case, the holders of the Series B Preferred Stock and of all such other
series then entitled so to vote, voting as a class, shall elect such directors.
If the holders of any such other series have elected such directors prior to the
happening of the default or event permitting the holders of Series B Preferred
Stock to elect directors, or prior to a written request for the holding of a
special meeting being received by the Secretary of the Corporation from the
holders of not less than 10% of the then outstanding shares of Series B
Preferred Stock, then such directors so previously elected will be deemed to
have been elected by and on behalf of the holders of Series B Preferred Stock as
well as such other series, without prejudice to the right of the holders of
Series B Preferred Stock to vote for directors if such previously elected
directors shall resign, cease to serve or stand for reelection while the holders
of Series B Preferred Stock are entitled to vote. If the holders of any such
other series are entitled to elect in excess of two (2) directors, the Series B
Preferred Stock shall not participate in the election of more than two (2) such
directors and those directors whose terms first expire shall be deemed to be the
directors elected by the holders of Series B Preferred Stock; provided that, if
at the expiration of such terms the holders of Series B Preferred Stock are
entitled to vote in the election of directors pursuant to the provisions of this
paragraph 6, then the Secretary of the Corporation shall call a meeting (which
meeting may be the annual meeting or special meeting of stockholders referred to
in subparagraph 6(b)) of holders of Series B Preferred Stock for the purpose of
electing replacement directors (in accordance with the provisions of this
paragraph 6) to be held at or prior to the time of expiration of the expiring
terms referred to above.
(d) At any meeting held for the purpose of electing directors at which the
holders of Series B Preferred Stock shall have the right to elect a director as
provided in subparagraph (b), the presence, in person or by proxy, of the
holders of a majority of the
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<PAGE> 52
voting power of such Series B Preferred Stock then outstanding shall be required
to constitute a quorum of such Series B Preferred Stock for such election. At
any such meeting or adjournment thereof, the absence of such a quorum of holders
of Series B Preferred Stock shall not prevent the election of directors other
than the directors to be elected by holders of such Series B Preferred Stock
pursuant to subparagraph (b), and the absence of a quorum for the election of
such other directors shall not prevent the election of the director to be
elected by the holders of Series B Preferred Stock as provided in subparagraph
(b), and in the absence of either or both of such quorums, the holders of a
majority of the voting power present in person or by proxy of the class of stock
which lacks a quorum shall have the power to adjourn the meeting. A vacancy in
the directorship to be elected by the holders of Series B Preferred Stock
pursuant to subparagraph (b) may be filed only by vote or written consent of a
majority in interest of such Series B Preferred Stock, at the time outstanding.
(e) At any time while a minimum of fifty percent (50%) of the shares of
Series B Preferred Stock remain outstanding, the Corporation shall not, without
the affirmative consent or approval of the holders of shares representing at
least a majority of the voting power of the Series B Preferred Stock then
outstanding, acting separately as one class, take any action to cause any
amendment, alteration or repeal of its Certificate of Incorporation or Bylaws if
such action would alter adversely or change the preference rights, privileges or
powers of, or the restrictions provided for the benefit of the Series B
Preferred Stock or increase or decrease the number of shares of Series B
Preferred Stock authorized hereby; provided, however, that the issuance of
additional classes or series of Junior Stock, Parity Stock or Senior Stock, or
an increase in the authorized amount of Preferred Stock or any other class or
series of Junior Stock, Parity Stock or Senior Stock shall not require the
approval or consent of the holders of the Series B Preferred Stock.
7. Exclusion of Other Rights.
Except as may otherwise be required by law, the shares of Series B
Preferred Stock shall not have any preferences or relative, participating,
optional or other special rights, other than those specifically set forth in
this resolution (as such resolution may be amended from time to time) and in the
Corporation's Certificate of Incorporation. The shares of Series B Preferred
Stock shall have no preemptive or subscription rights.
8. Headings of Subdivisions.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
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<PAGE> 53
9. Severability of Provisions.
If any right, preference or limitation of the Series B Preferred Stock set
forth in this resolution (as such resolution may be amended from time to time)
is invalid, unlawful or incapable of being enforced by reason of any rule of law
or public policy, all other rights, preferences and limitations set forth in
this resolution (as so amended) which can be given effect without the invalid,
unlawful or unenforceable right, preference or limitation shall, nevertheless,
remain in full force and effect, and no right, preference or limitation herein
set forth shall be deemed dependent upon any other such right, preference or
limitation unless so expressed herein.
10. Status of Reacquired Shares.
Shares of Series B Preferred Stock which have been issued and reacquired in
any manner shall (upon compliance with any applicable provisions of the laws of
the State of Delaware) have the status of authorized and unissued shares of
Preferred Stock issuable in series undesignated as to series and may be
redesignated and reissued.
IN WITNESS WHEREOF, this Certificate has been duly executed by the
undersigned Chairman of the Board and Secretary of the Corporation this 15th day
of April, 1993.
HARCOR ENERGY, INC.
By: /s/ MARK G. HARRINGTON
------------------------------
Mark G. Harrington
Chairman of the Board
ATTEST:
/s/ GARY S. PECK
- -----------------------------------
Gary S. Peck
Secretary
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<PAGE> 54
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "HARCOR ENERGY, INC.", FILED IN THIS OFFICE ON THE FIFTH DAY OF
MAY, A.D. 1993, AT 10:42 O'CLOCK A.M.
<TABLE>
<S> <C> <C>
2126867 8100 [SEAL] /s/ EDWARD J. FREEL
950156132 -----------------------------
Edward J. Freel, Secretary of
State
AUTHENTICATION: 7571629
DATE: 07-13-95
</TABLE>
<PAGE> 55
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND
RIGHTS OF SERIES C CONVERTIBLE PREFERRED STOCK
PURSUANT TO SECTION 151 OF THE
DELAWARE GENERAL CORPORATION LAW
The undersigned Chairman of the Board and Secretary, respectively, of
HarCor Energy, Inc., a Delaware corporation (the "Corporation") certify that
pursuant to authority granted to and vested in the Board of Directors of the
Corporation by the provisions of the Certificate of Incorporation and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, its Board of Directors has duly adopted the following
resolutions creating the Series C Convertible Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation by Article IV of the Corporation's Certificate of
Incorporation, a series of preferred stock of the Corporation be, and it hereby
is, created out of the authorized but unissued shares of the capital stock of
the Corporation, such series to be designated Series C Convertible Preferred
Stock (the "Series C Preferred Stock"), to consist of 10,000 shares, par value
$.01 per share, of which the preferences and relative and other rights, and the
qualifications, limitations or restrictions thereof, shall be (in addition to
those set forth in the Corporation's Certificate of Incorporation) as follows:
1. Certain Definitions.
Unless the context otherwise requires, the terms defined in this paragraph
1 shall have, for all purposes of this resolution, the meanings herein
specified.
Common Stock. The term "Common Stock" shall mean all shares now or
hereafter authorized of any class of Common Stock of the Corporation and any
other stock of the Corporation, howsoever designated, authorized after the Issue
Date, which has the right (subject always to prior rights of any class or series
of preferred stock) to participate in the distribution of the assets and
earnings of the Corporation without limit as to per share amount.
Conversion Date. The term "Conversion Date" shall have the meaning set
forth in subparagraph 5(d) below.
Conversion Price. The term "Conversion Price" shall mean the price per
share of Common Stock used to determine the number of shares of Common Stock
deliverable upon conversion of a share of the Series C Preferred Stock, which
price shall initially be $3.90 per share, subject to adjustment in accordance
with the provisions of paragraph 5 below.
Current Market Price. The term "Current Market Price" shall have the
meaning set forth in subparagraph 5(g) below.
<PAGE> 56
Dividend Payment Date. The term "Dividend Payment Date" shall have the
meaning set forth in paragraph 2(a) below.
Dividend Period. The term "Dividend Period" shall have the meaning set
forth in subparagraph 2(a) below.
Final Redemption Date. The term "Final Redemption Date" shall have the
meaning set forth in subparagraph 4(e) below.
Issue Date. The term "Issue Date" shall mean the date that shares of Series
C Preferred Stock are first issued by the Corporation.
Junior Stock. The term "Junior Stock" shall mean, for purposes of paragraph
2 below, the Common Stock and any other class or series of stock of the
Corporation issued after the Issue Date not entitled to receive any dividends in
any Dividend Period unless all dividends required to have been paid or declared
and set apart for payment on the Series C Preferred Stock shall have been so
paid or declared and set apart for payment and, for purposes of paragraph 3
below, the Common Stock and any other class or series of stock of the
Corporation issued after the Issue Date not entitled to receive any assets upon
the liquidation, dissolution or winding up of the affairs of the Corporation
until the Series C Preferred Stock shall have received the entire amount to
which such stock is entitled upon such liquidation, dissolution or winding up.
Parity Stock. The term "Parity Stock" shall mean, for purposes of paragraph
2 below the Series A 8% Cumulative Convertible Preferred Stock and the Series B
Convertible Preferred Stock of the Corporation and any other class or series of
stock of the Corporation issued after the Issue Date entitled to receive payment
of dividends on a parity with the Series C Preferred Stock and, for purposes of
paragraph 3 below, the Series A 8% Cumulative Convertible Preferred Stock and
Series B Convertible Preferred Stock of the Corporation and any other class or
series of stock of the Corporation issued after the Issue Date entitled to
receive assets upon the liquidation, dissolution or winding up of the affairs of
the Corporation on a parity with the Series C Preferred Stock.
Purchase Price. The term "Purchase Price" shall mean $100.00 per share.
Redemption Agent. The term "Redemption Agent" shall have the meaning set
forth in subparagraph 4(d) below.
Redemption Date. The term "Redemption Date" shall have the meaning set
forth in subparagraph 4(c) below.
Redemption Price. The term "Redemption Price" shall mean the price to be
paid upon redemption of the Series C Preferred Stock, as determined in
accordance with subparagraph 4(a) below.
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<PAGE> 57
Senior Stock. The term "Senior Stock" shall mean, for purposes of paragraph
2 below, any class or series of stock of the Corporation issued after the Issue
Date ranking senior to the Series C Preferred Stock in respect of the right to
receive dividends, and, for purposes of paragraph 3 below, any class or series
of stock of the Corporation issued after the Issue Date ranking senior to the
Series C Preferred Stock in respect of the right to receive assets upon the
liquidation, dissolution or winding up of the affairs of the Corporation.
Subsidiary. The term "Subsidiary" shall mean any corporation of which
shares of stock possessing at least a majority of the general voting power in
electing the board of directors are, at the time as of which any determination
is being made, owned by the Corporation, whether directly or indirectly through
one or more Subsidiaries.
2. Dividends.
(a) Subject to the prior preferences and other rights of any Senior Stock,
the holders of the Series C Preferred Stock shall be entitled to receive, out of
funds legally available for that purpose, cash dividends at the rate of $8.00
per share per annum, and no more. Such dividends shall be cumulative from the
Issue Date and shall be payable in arrears, when and as declared by the Board of
Directors, on March 31, June 30, September 30 and December 31 of each year (each
such date being herein referred to as a "Dividend Payment Date"), commencing on
June 30, 1993. The quarterly period between consecutive Dividend Payment Dates
shall hereinafter be referred to as a "Dividend Period." Each such dividend
shall be paid to the holders of record of the Series C Preferred Stock as their
names appear on the share register of the Corporation on the corresponding
Record Date. As used above, the term "Record Date" means, with respect to the
dividend payable on March 31, June 30, September 30 and December 31,
respectively, of each year, the preceding March 15, June 15, September 15 and
December 15, or such other record date designated by the Board of Directors of
the Corporation with respect to the dividend payable on such respective Dividend
Payment Date. Dividends on account of arrears for any past Dividend Periods may
be declared and paid at any time, without reference to any Dividend Payment
Date, to holders of record on such date, not exceeding 50 days preceding the
payment date thereof, as may be fixed by the Board of Directors.
(b) In the event that full cash dividends are not paid or made available to
the holders of all outstanding shares of the Series C Preferred Stock and of any
Parity Stock, and funds available shall be insufficient to permit payment in
full in cash to all such holders of the preferential amounts to which they are
then entitled, the entire amount available for payment of cash dividends shall
be distributed among the holders of the Series C Preferred Stock and of any
Parity Stock ratably in proportion to the full amount to which they would
otherwise be respectively entitled, any remainder not paid in cash to the
holders of the Series C Preferred Stock shall cumulate as provided in
subparagraph 2(c) below.
(c) If, on any Dividend Payment Date, the holders of the Series C Preferred
Stock shall not have received the full dividends provided for in the other
provisions of this paragraph 2, then such dividends shall cumulate without
interest, whether or not earned or
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<PAGE> 58
declared, with additional dividends thereon for each succeeding full Dividend
Period during which such dividends shall remain unpaid. Unpaid dividends for any
period less than a full Dividend Period shall cumulate on a day-to-day basis and
shall be computed on the basis of a 360 day year.
(d) So long as any shares of the Series C Preferred Stock shall be
outstanding, the Corporation shall not declare or pay on any Junior Stock any
dividend whatsoever, whether in cash, property or otherwise (other than
dividends payable in shares of the class or series upon which such dividends are
declared or paid, or payable in shares of Common Stock with respect to Junior
Stock other than Common Stock, together with cash in lieu of fractional shares),
nor shall the Corporation make any distribution on any Junior Stock, nor shall
any Junior Stock be purchased or redeemed by the Corporation or any Subsidiary,
nor shall any monies be paid or made available for a sinking fund for the
purchase or redemption of any Junior Stock, unless all dividends to which the
holders of the Series C Preferred Stock shall have been entitled for all
previous Dividend Periods shall have been paid or declared and a sum of money
sufficient for the payment thereof set apart.
3. Distributions Upon Liquidation, Dissolution or Winding Up.
In the event of any voluntary or involuntary liquidation, dissolution or
other winding up of the affairs of the Corporation, subject to the prior
preferences and other rights of any Senior Stock, but before any distribution or
payment shall be made to the holders of Junior Stock, the holders of the Series
C Preferred Stock shall be entitled to be paid the Purchase Price of all
outstanding shares of the Series C Preferred Stock as of the date of such
liquidation or dissolution or such other winding up, plus any accrued but unpaid
dividends, if any, to such date, and no more, in cash or in property taken at
its fair value as determined by the Board of Directors, or both, at the election
of the Board of Directors. If such payment shall have been made in full to the
holders of the Series C Preferred Stock, and if payment shall have been made in
full to the holders of any Senior Stock and Parity Stock of all amounts to which
such holders shall be entitled, the remaining assets and funds of the
Corporation shall be distributed among the holders of Junior Stock, according to
their respective shares and priorities. If, upon any such liquidation,
dissolution or other winding up of the affairs of the Corporation, the net
assets of the Corporation distributable among the holders of all outstanding
shares of the Series C Preferred Stock and of any Parity Stock shall be
insufficient to permit the payment in full to such holders of the preferential
amounts to which they are entitled, then the entire net assets of the
Corporation remaining after the distributions to holders of any Senior Stock of
the full amounts to which they may be entitled shall be distributed among the
holders of the Series C Preferred Stock and of any Parity Stock ratably in
proportion to the full amounts to which they would otherwise be respectively
entitled. Neither the consolidation or merger of the Corporation into or with
another corporation or corporations, nor the sale of all or substantially all of
the assets of the Corporation to another corporation or corporations shall be
deemed a liquidation, dissolution or winding up of the affairs of the
Corporation within the meaning of this paragraph 3.
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<PAGE> 59
4. Redemption By the Corporation.
(a) The Series C Preferred Stock shall not be redeemed in whole or in part
prior to January 1, 1995. On and after January 1, 1995, the Series C Preferred
Stock may be redeemed by the Corporation in cash at any time in whole or,
(subject to the last sentence of subparagraph 4(b) below) from time to time in
part, at the option of the Corporation, at a price of $150.00 per share (the
"Redemption Price") on any date that the closing price per share of Common Stock
has been at least $5.85 (as adjusted for any stock dividend, split, combination
or reclassification) for at least 20 of the 30 consecutive trading days ending
on the fifth day prior to the notice of redemption.
(b) If less than all of the outstanding shares of the Series C Preferred
Stock are to be redeemed, such shares shall be redeemed pro rata to the extent
reasonably practicable.
(c) Notice of every proposed redemption of the Series C Preferred Stock
shall be sent by or on behalf of the Corporation, by first class mail, postage
prepaid, to the holders of record of the shares to be redeemed at their
respective addresses as they shall appear on the records of the Corporation, not
less than thirty (30) days not more than sixty (60) days prior to the date fixed
for redemption (the "Redemption Date") (i) notifying such holders of the
election of the Corporation to redeem such shares and of the date of redemption,
(ii) stating the date on which the shares cause to be convertible, and the
Conversion Price, (iii) stating the place or places at which the shares called
for redemption shall, upon presentation and surrender of the certificates
evidencing such shares, be redeemed, and the Redemption Price therefor, and (iv)
stating the name and address of any Redemption Agent selected by the Corporation
in accordance with subparagraph 4(d) below, and the name and address of the
Corporation's transfer agent for the Series C Preferred Stock. The Corporation
may act as the transfer agent for the Series C Preferred Stock.
(d) The Corporation may act as the redemption agent to redeem the Series C
Preferred Stock. The Corporation may also appoint as its agent for such purpose
a bank or trust company in good standing, organized under the laws of the United
States of America or any jurisdiction thereof, and having capital, surplus and
undivided profits aggregating at least Twenty Million Dollars ($20,000,000), and
may appoint any one or more additional such agents which shall in each case be a
bank or trust company in good standing organized under the laws of the United
States of America or of any jurisdiction thereof, having an office or offices in
the City of Houston, Texas, or such other place as shall have been designated by
the corporation, and having capital, surplus and undivided profits aggregating
at least Twenty Million Dollars ($20,000,000). The Corporation or such bank or
trust company are hereinafter referred to as the "Redemption Agent". Following
such appointment and prior to any redemption, the Corporation shall deliver to
the Redemption Agent irrevocable written instructions authorizing the Redemption
Agent, on behalf and at the expense of the Corporation, to cause such notice of
redemption to be duly mailed as herein provided as soon as practicable after
receipt of such irrevocable instructions and in accordance with the above
provisions. All funds necessary for the redemption shall be deposited with the
Redemption Agent in trust at least two business days prior to the
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<PAGE> 60
Redemption Date, for the pro rata benefit of the holders of the shares are so
called for redemption, so as to be and continue to be available therefor.
Neither failure to mail any such notice to one or more such holders nor any
defect in any notice shall affect the sufficiency of the proceedings for
redemption as to other holders.
(e) If notice of redemption shall have been given as hereinbefore provided,
and the Corporation shall not default in the payment of the Redemption Price,
then each holder of shares called for redemption shall be entitled to all
preferences, relative and other rights accorded by this resolution until and
including the date prior to the Redemption Date, except as set forth in
paragraph 5 hereof. If the Corporation shall default in making payment or
delivery as aforesaid on the Redemption Date, then each holder of the shares
called for redemption shall be entitled to all preferences, relative and other
rights accorded by this resolution until and including the date prior to the
date (the "Final Redemption Date") when the Corporation makes payment or
delivery as aforesaid to the holders of the Series C Preferred Stock, except as
set forth in paragraph 5 hereof. From and after the Redemption Date or, if the
Corporation shall default in making payment or delivery as aforesaid, the Final
Redemption Date, the shares called for redemption shall no longer be deemed to
be outstanding, and all rights of the holders of such shares shall cease and
terminate, except the right of the holders of such shares, upon surrender of
certificates therefor, to receipt of amounts to be paid hereunder. The deposit
of monies in trust with the Redemption Agent shall be irrevocable except that
the Corporation shall be entitled to receive from the Redemption Agent the
interest or other earnings, if any, earned on any monies so deposited in trust,
and the holders of any shares redeemed shall have no claim to such interest or
other earnings, and any balance of monies so deposited by the Corporation and
unclaimed by the holders of the Series C Preferred Stock entitled thereto at the
expiration of two (2) years from the Redemption Date (or the Final Redemption
Date, as applicable) shall be repaid, together with any interest or other
earnings thereon, to the Corporation, and after any such repayment, the holders
of the shares entitled to the funds so repaid to the Corporation shall look only
to the Corporation for such payment, without interest.
5. Conversion Rights.
The Series C Preferred Stock shall be convertible into Common Stock as
follow:
(a) Optional Conversion. Subject to and upon compliance with the
provisions of this paragraph 5, the holder of any shares of the Series C
Preferred Stock shall have the right at such holder's option, at any time
or from time to time, to convert any and all of the shares of Series C
Preferred Stock, into fully paid and nonassessable shares of Common Stock
at the Conversion Price (as hereinafter defined) in effect on the
Conversion Date (as hereinafter defined) upon the terms hereinafter set
forth. In case any share of Series C Preferred Stock is called for
redemption, such right of conversion shall terminate at the close of
business on the fifth day prior to the Redemption Date or, if the
Corporation shall default in the payment of the Redemption Price, at the
close of business on the fifth day prior to the Final Redemption Date.
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(b) Automatic Conversion. Each outstanding share of Series C Preferred
Stock shall automatically be converted, without any further act of the
Corporation or its stockholders, into fully paid and nonassessable shares
of Common Stock at the Conversion Price then in effect (i) on the first
date after December 31, 1996 until December 31, 1998 that the closing price
per share of Common Stock has been at least $5.85 (as adjusted for any
stock dividend, split, combination or reclassification) for 20 of 30
consecutive trading days; or (ii) on December 31, 1998.
(c) Conversion Price. Each share of Series C Preferred Stock shall be
converted into a number of shares of Common Stock determined by dividing
(i) Purchase Price by (ii) the Conversion Price in effect on the Conversion
Date. The Conversion Price at which shares of Common Stock shall initially
be issuable upon conversion of the shares of the Series C Preferred Stock
shall be $3.90. The Conversion Price shall be subject to adjustment as set
forth in subparagraph 5(f). No payment or adjustment shall be made for any
dividends on the Series C Preferred Stock or Common Stock issuable upon
such conversion.
(d) Mechanics of Conversion. The holder of any shares of Series C
Preferred Stock may exercise the conversion right specified in subparagraph
5(a) by surrendering to the Corporation or any transfer agent of the
Corporation the certificate or certificates for the shares to be converted,
accompanied by written notice specifying the number of shares to be
converted. Upon the occurrence of the event specified in subparagraph 5(b),
the outstanding shares of Series C Preferred Stock shall be converted
automatically without any further action by the holders of such shares and
whether or not the certificates representing such shares are surrendered to
the Corporation or its transfer agent; provided that the Corporation shall
not be obligated to issue to any such holder certificates evidencing the
shares of Common Stock issuable upon such conversion unless certificates
evidencing the shares of Series C Preferred Stock are either delivered to
the Corporation or any transfer agent of the Corporation. Conversion shall
be deemed to have been effected on the date when delivery of notice of an
election to convert and certificates for shares is made or on the date of
the occurrence of the event specified in subparagraph 5(b), as the case may
be, and such date is referred to herein as the "Conversion Date." Subject
to the provisions of subparagraph 5(f)(v), as promptly as practicable
thereafter (and after surrender of the certificate or certificates
representing shares of Series C Preferred Stock to the Corporation or any
transfer agent of the Corporation in the case of conversions pursuant to
subparagraph 5(b)) the Corporation shall issue and deliver to or upon the
written order of such holder a certificate or certificates for the number
of full shares of Common Stock to which such holder is entitled and a check
or cash with respect to any fractional interest in a share of Common Stock
as provided in subparagraph 5(e). Subject to the provisions of subparagraph
5(f)(v), the person in whose name the certificate or certificates for
Common Stock are to be issued shall be deemed to have become a holder of
record of such Common Stock on the applicable Conversion Date. Upon
conversion of only a portion of the number of shares covered by a
certificate representing shares of Series C Preferred Stock surrendered for
conversion (in the case of conversion pursuant to subparagraph 5(a)), the
Corporation shall issue and deliver to or upon the written order of the
holder of the certificate so surrendered for conversion, at the expense of
the Corporation, a new
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<PAGE> 62
certificate covering the number of shares of Series C Preferred Stock
representing the unconverted portion of the certificate so surrendered.
(e) Fractional Shares. No fractional shares of Common Stock or scrip
shall be issued upon conversion of shares of Series C Preferred Stock. If
more than one share of Series C Preferred Stock shall be surrendered for
conversion at any one time by the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the
basis of the aggregate number of shares of Series C Preferred Stock so
surrendered. Instead of any fractional shares of Common Stock which would
otherwise be issuable upon conversion of any shares of Series C Preferred
Stock, the Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to that fractional interest of the
then Current Market Price.
(f) Conversion Price Adjustments. The Conversion Price shall be
subject to adjustment from time to time as follows:
(i) Stock Dividends, Subdivisions, Reclassifications or
Combinations. If the Corporation shall (1) declare a dividend or make a
distribution on its Common Stock in shares of its Common Stock, (2)
subdivide or reclassify the outstanding shares of common Stock into a
greater number of shares, or (3) combine or reclassify the outstanding
Common Stock into a smaller number of shares, the Conversion Price in
effect at the time of the record date for such dividend or distribution
or the effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so that the holder of
any shares of Series C Preferred Stock surrendered for conversion after
such date shall be entitled to receive the number of shares of Common
Stock which he would have owned or been entitled to receive had such
Series C Preferred Stock been converted immediately prior to such date.
Successive adjustments in the Conversion Price shall be made whenever
any event specified above shall occur.
(ii) Other Distributions. In case the Corporation shall fix a
record date for the making of a distribution to all holders of shares of
its Common Stock (1) of shares of any class other than its Common Stock
or (2) of evidence of indebtedness of the Corporation or any Subsidiary
or (3) of assets (excluding cash dividends or distributions, and
dividends or distributions referred to in subparagraph 5(f)(i) above),
or (4) of rights or warrants each holder of a share of Series C
Preferred Stock shall, upon the exercise of his right to convert after
such record date, receive, in addition to the shares of Common Stock to
which he is entitled, the amount of such assets (or, at the option of
the Corporation, the sum equal to the value thereof at the time of
distribution as determined by the Board of directors in its sole
discretion) that would have been distributed to such holder if he had
exercised his right to convert immediately prior to the record date for
such determination.
(iii) Consolidation, Merger, Sale, Lease or Conveyance. In case of
any consolidation with or merger of the Corporation with or into another
corporation, or in case of any sale, lease or conveyance to another
corporation of the assets of the Corporation as an entirety or
substantially as an entirety, each share of Series C Preferred Stock
shall after the date of such consolidation, merger, sale, lease or
conveyance be convertible into the
-8-
<PAGE> 63
number of shares of stock or other securities or property (including
cash) to which the Common Stock issuable (at the time of such
consolidation, merger, sale, lease or conveyance) upon conversion of
such share of Series C Preferred Stock would have been entitled upon
such consolidation, merger, sale, lease or conveyance. In any such case,
if necessary, the provisions set forth herein with respect to the rights
and interests thereafter of the holders of the shares of Series C
Preferred Stock shall be appropriately adjusted so as to be applicable,
as nearly as may reasonably be, to any shares of stock or other
securities or property thereafter deliverable on the conversion of the
shares of Series C Preferred Stock.
(iv) Special Adjustment of Conversion Price. Notwithstanding the
other provisions of this subparagraph (f), in the event of a Corporate
Change (as defined herein) or an Ownership Change (as herein defined),
the Conversion Price on the date of occurrence of such event shall be
the Current Market Price, if the Current Market Price is less than the
Conversion Price in effect prior to such date. A "Corporate Change"
shall mean a consolidation with or merger of the Corporation with or
into another corporation or entity, or any sale, lease or conveyance to
another corporation or entity of the assets of the Corporation as an
entirety or substantially as an entirety, in any of which transactions
the stockholders of the Corporation after completion of any such
transaction own less than fifty percent (50%) of the voting power in the
election of directors generally of the other corporation or entity. An
"Ownership Change" with respect to the Corporation shall be deemed to
have occurred at such time as any person (other than Mark G. Harrington)
together with any of its Affiliates or Associates (as defined below)
becomes the beneficial owner, directly or indirectly, or more than 50%
of the outstanding Common Stock of the Corporation pursuant to a
transaction that does not constitute a Corporate Change with respect to
the Corporation. An "Affiliate" of a specified person is a person that
directly or indirectly controls, or is controlled by, or is under common
control with, the person specified. An "Associate" of a person means (1)
any corporation or organization, other than the Corporation or any
majority owned subsidiary of the Corporation, of which the person is an
officer or partner or is, directly or indirectly, the beneficial owner
of 10% or more of any class of equity securities; (2) any trust or
estate in which the person has a substantial beneficial interest or as
to which the person serves as trustee or in a similar fiduciary
capacity; and (3) any relative or spouse of the person or any relative
of the spouse, who has the same home as the person or who is a director
or officer of the person or any of its parents or subsidiaries. As used
herein, a person shall be deemed to have "beneficial ownership" with
respect to, and shall be deemed to "beneficially own," any securities of
the Corporation in accordance with Section 13 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations (including Rule
13d-3, Rule 13d-5 and any successor rules) promulgated by the Securities
and Exchange Commission thereunder.
(v) Rounding of Calculations; Minimum Adjustment. All calculations
under the subparagraph (f) shall be made to the nearest cent or to the
nearest one hundredth (1/100th) of a share, as the case may be. Any
provision of this paragraph 5 to the contrary notwithstanding, no
adjustment in the Conversion Price shall be made if the amount of such
adjustment would be less than $0.05 until the end of three years after
such adjustment would otherwise have been required, but any such amount
shall be carried
-9-
<PAGE> 64
forward and an adjustment with respect thereto shall be made at the time
of and together with any subsequent adjustment which, together with such
amount any other amount or amounts so carried forward, shall aggregate
$0.05 or more.
(vi) Timing of Issuance of Additional Common Stock Upon Certain
Adjustments. In any case in which the provisions of this subparagraph
(f) shall require that any adjustment shall become effective immediately
after a record date for an event, the Corporation may defer until the
occurrence of such event (A) issuing to the holder of any share of
Series C Preferred Stock converted after such record date and before the
occurrence of such event the additional shares of Common Stock issuable
upon such conversion by reason of the adjustment required by such event
over and above the shares of Common Stock issuable upon such conversion
before giving effect to such adjustment and (B) paying to such holder
any amount of cash in lieu of a fractional share of Common Stock
pursuant to subparagraph (e) of this paragraph 5, provided that the
Corporation upon request shall deliver to such holder a due bill or
other appropriate instrument evidencing such holder's right to receive
such additional shares, and such cash, upon the occurrence of the event
requiring such adjustment.
(g) Current Market Price. The Current Market Price at any date shall
mean, in the event the Common Stock is publicly traded, the average of the
daily closing prices per share of Common Stock for 30 consecutive trading
days ending no more than 15 business days before such date (as adjusted for
any stock dividend, split, combination or reclassification that took effect
during such 30 business day period). The closing price for each day shall
be the last reported sale price regular way or, in case no such reported
sale takes place on such day, the average of the last closing bid and asked
prices regular way, in either case on the principal national securities
exchange on which the Common Stock is listed or admitted to trading, or if
not listed or admitted to trading on any national securities exchange, the
closing sale price for such day reported by NASDAQ, if the Common Stock is
traded over-the-counter and quoted in the National Market System, or if the
Common Stock is so traded, but not so quoted, the average of the closing
reported bid and asked prices of the Common Stock as reported by NASDAQ or
any comparable system or, if the Common Stock is not listed on NASDAQ or
any comparable system, the average of the closing bid and asked prices as
furnished by two members of the National Association of Securities Dealers,
Inc. selected from time to time by the Corporation for that purpose. If the
Common Stock is not traded in such manner that the quotations referred to
above are available for the period required hereunder, Current Market Price
per share of Common Stock shall be deemed to be the fair value as
determined by the Board of Directors, irrespective of any accounting
treatment.
(h) Statement Regarding Adjustments. Whenever the Conversion Price
shall be adjusted as provided in subparagraph 5(f), the Corporation shall
forthwith file, at the office of any transfer agent for the Series C
Preferred Stock and at the principal office of the Corporation, a
statement showing in detail the facts requiring such adjustment and the
Conversion Price that shall be in effect after such adjustment, and the
Corporation shall also cause a copy of such statement to be sent by mail,
first class postage prepaid, to each holder of shares of Series C
Preferred Stock at its address appearing on the Corporation's
-10-
<PAGE> 65
records. Each such statement shall be signed by the Corporation's
independent public accountants, if applicable. Where appropriate, such copy
may be given in advance and may be included as part of a notice required to
be mailed under the provisions of subparagraph 5(i).
(i) Notice to Holders. In the event the Corporation shall propose to
take any action of the type described in clause (i), (ii) or (iii) of
subparagraph 5(f), the Corporation shall give notice to each holder of
shares of Series C Preferred Stock, in the manner set forth in subparagraph
5(h), which notice shall specify the record date, if any, with respect to
any such action and the approximate date on which such action is to take
place. Such notice shall also set forth such facts with respect thereto as
shall be reasonably necessary to indicate the effect of such action (to the
extent such effect may be known at the date of such notice) on the
Conversion Price and the number, kind or class of shares or other
securities or property which shall be deliverable upon conversion of shares
of Series C Preferred Stock. In the case of any action which would require
the fixing of a record date, such notice shall be given at least 10 days
prior to the date so fixed, and in case of all other action, such notice
shall be given at least 15 days prior to the taking of such proposed
action. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of any such action.
(j) Treasury Stock. For the purposes of this paragraph 5, the sale or
other disposition of any Common Stock theretofore held in the Corporation's
treasury shall be deemed to be an issue thereof.
(k) Costs. The Corporation shall pay all documentary, stamp, transfer
or other transactional taxes attributable to the issuance or delivery of
shares of Common Stock upon conversion of any shares of Series C Preferred
Stock; provided that the Corporation shall not be required to pay any taxes
which may be payable in respect of any transfer involved in the issuance or
delivery of any certificate for such shares in a name other than that of
the holder of the shares of Series C Preferred Stock in respect of which
such shares are being issued.
(l) Reservation of Shares. The Corporation shall reserve at all times
so long as any shares of Series C Preferred Stock remain outstanding, free
from preemptive rights, out of its treasury stock (if applicable) or its
authorized but unissued shares of Common Stock, or both, solely for the
purpose of effecting the conversion of the shares of Series C Preferred
Stock, sufficient shares of Common Stock to provide for the conversion of
all outstanding shares of Series C Preferred Stock.
(m) Valid Issuance. All shares of Common Stock which may be issued
upon conversion of the shares of Series C Preferred Stock will upon
issuance by the Corporation be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to
the issuance thereof, and the Corporation shall take no action which will
cause a contrary result (including, without limitation, any action which
would cause the Conversion Price to be less than the par value, if any, of
the Common Stock).
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<PAGE> 66
6. Voting Rights.
(a) In addition to any other rights provided in the Corporation's Bylaws or
by law, each share of Series C Preferred Stock shall entitle the holder thereof
to such number of votes per share as shall equal the whole number of shares of
Common Stock into which each share of Series C Preferred Stock is then
convertible, and each share of Series C Preferred Stock shall be entitled to
vote on all matters as to which holders of Common Stock shall be entitled to
vote, in the same manner and with the same effect as such holders of Common
Stock, voting together with the holders of Common Stock as one class, except for
all the matters set forth in this paragraph 6 on which the Series C Preferred
Stock shall have class voting rights and in such instance the Series C Preferred
Stock shall not vote together with the Common Stock. In all cases where the
holders of shares of Series C Preferred Stock have the right to vote separately
as a class, such holders shall be entitled to one vote for each share of Series
C Preferred Stock held by them respectively.
(b) At any time while a minimum of fifty percent (50%) of the shares of
Series C Preferred Stock remain outstanding, the Corporation shall not, without
the affirmative consent or approval of the holders of shares representing at
least a majority of the voting power of the Series C Preferred Stock then
outstanding, acting separately as one class, take any action to cause any
amendment, alteration or repeal of its Certificate of Incorporation or Bylaws if
such action would alter adversely or change the preference rights, privileges or
powers of, or the restrictions provided for the benefit of the Series C
Preferred Stock or increase or decrease the number of shares of Series C
Preferred Stock authorized hereby; provided, however, that the issuance of
additional classes or series of Junior Stock, Parity Stock or Senior Stock, or
an increase in the authorized amount of Preferred Stock or any other class or
series of Junior Stock, Parity Stock or Senior Stock shall not require the
approval or consent of the holders of the Series C Preferred Stock.
7. Exclusion of Other Rights.
Except as may otherwise be required by law, the shares of Series C
Preferred Stock shall not have any preferences or relative, participating,
optional or other special rights, other than those specifically set forth in
this resolution (as such resolution may be amended from time to time) and in the
Corporation's Certificate of Incorporation. The shares of Series C Preferred
Stock shall have no preemptive or subscription rights.
8. Headings of Subdivisions.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
9. Severability of Provisions.
If any right, preference or limitation of the Series C Preferred Stock set
forth in this resolution (as such resolution may be amended from time to time)
is invalid, unlawful or incapable of being enforced by reason of any rule of law
or public policy, all other rights,
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<PAGE> 67
preferences and limitations set forth in this resolution (as so amended) which
can be given effect without the invalid, unlawful or unenforceable right,
preference or limitation shall, nevertheless, remain in full force and effect,
and no right, preference or limitation herein set forth shall be deemed
dependent upon any other such right, preference or limitation unless so
expressed herein.
10. Status of Reacquired Shares.
Shares of Series C Preferred Stock which have been issued and reacquired in
any manner shall (upon compliance with any applicable provisions of the laws of
the State of Delaware) have the status of authorized and unissued shares of
Preferred Stock issuable in series undesignated as to series and may be
redesignated and reissued.
IN WITNESS WHEREOF, this Certificate has been duly executed by the
undersigned Chairman of the Board and Secretary of the Corporation this 26 day
of April, 1993.
HARCOR ENERGY, INC.
By: /s/ MARK G. HARRINGTON
------------------------------
Mark G. Harrington
Chairman of the Board
ATTEST:
/s/ GARY S. PECK
- --------------------------------
Gary S. Peck
Secretary
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<PAGE> 68
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "HARCOR ENERGY, INC.", FILED IN THIS OFFICE ON THE FIRST DAY OF JULY, A.D.
1993, AT 9 O'CLOCK A.M.
<TABLE>
<S> <C> <C>
2126867 8100 [SEAL] /s/ EDWARD J. FREEL
950156132 -----------------------------
Edward J. Freel, Secretary of
State
AUTHENTICATION: 7571630
DATE: 07-13-95
</TABLE>
<PAGE> 69
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
HARCOR ENERGY, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That by the unanimous written consent of the Board of Directors of
the Corporation resolutions were duly adopted setting forth a proposed amendment
of the Certificate of Incorporation of the Corporation declaring said amendment
to be advisable and calling a meeting of the stockholders of said Corporation
for consideration thereof. The resolution setting forth the proposed amendment
is as follows:
RESOLVED, that the Board of Directors of the Corporation deems it
advisable and in the best interest of the Corporation to amend Part A of
Article IV of the Certificate of Incorporation of the Corporation to
increase the number of authorized shares of the common stock of the
Corporation from ten million shares to fifteen million shares, so that as
amended Part A of Article IV shall read as follows:
"A. HarCor Energy, Inc. ("Corporation") is authorized to issue two
classes of shares of stock to be designated, respectively, the "Common
Stock" and the "Preferred Stock". The total number of shares of stock
which the Corporation shall have the authority to issue is Sixteen
Million Five Hundred Thousand (16,500,000) shares. The total number of
shares of Common Stock which the Corporation shall have the authority to
issue is Fifteen Million (15,000,000) shares, par value $0.10 per share.
The total number of shares of Preferred Stock which the Corporation
shall have the authority to issue is One Million Five Hundred Thousand
(1,500,000) shares, par value $0.01 per share."
<PAGE> 70
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
an annual meeting of the stockholders of the Corporation was duly called and
held, upon notice in accordance with Section 222 of the General Corporation Law
of the State of Delaware at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provision of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by Mark G. Harrington, its Chairman of the Board, and Gary Peck, its
Secretary, this 22 day of June, 1993.
HARCOR ENERGY, INC.
By: /s/ MARK G. HARRINGTON
-------------------------------
Mark G. Harrington, President
ATTEST:
/s/ GARY PECK
- ----------------------------------
Gary Peck, Secretary
-2-
<PAGE> 71
State of Delaware PAGE 1
Office of the Secretary of State
-----------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "HARCOR ENERGY, INC.", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY
OF JUNE, A.D. 1994, AT 1 O'CLOCK P.M.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7571631
2126867 8100
DATE: 07-13-95
950156132
<PAGE> 72
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
HARCOR ENERGY, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That by the unanimous written consent of the Board of Directors
of the Corporation resolutions were duly adopted setting forth a proposed
amendment of the Certificate of Incorporation of the Corporation declaring said
amendment to be advisable and calling a meeting of the stockholders of said
Corporation for consideration thereof.
The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Board of Directors of the Corporation
deems it advisable and in the best interest of the Corporation
to amend Part A of Article IV of the Certificate of Incorporation
of the Corporation to increase the number of authorized shares of
the common stock of the Corporation from fifteen million shares to
twenty-five million shares, so that as amended Part A of Article IV
shall read as follows:
"A. HarCor Energy, Inc. ("Corporation") is authorized to
issue two classes of shares of stock to be designated,
respectively, the "Common Stock" and the "Preferred Stock".
The total number of shares of stock which the Corporation
shall have the authority to issue is Twenty-Six Million Five
Hundred Thousand (26,500,000) shares. The total number of
shares of Common Stock which the Corporation shall have the
authority to issue is Twenty-Five Million (25,000,000) shares,
par value $0.10 per share. The total number of shares of
Preferred Stock which the Corporation shall have the
authority to issue is One Million Five Hundred Thousand
(1,500,000) shares, par value $0.01 per share."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the stockholders of the Corporation was duly
called and held, upon
<PAGE> 73
notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware at which meeting the necessary number of shares as required
by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provision of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by Mark G. Harrington, its Chairman of the Board, and Gary S. Peck, its
Secretary, this 15th day of June, 1994.
HARCOR ENERGY, INC.
By: /s/ MARK G. HARRINGTON
---------------------------------
Mark G. Harrington, President
ATTEST:
/s/ GARY S. PECK
- ---------------------------------
Gary S. Peck, Secretary
-2-
<PAGE> 74
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "HARCOR ENERGY, INC.", FILED IN THIS OFFICE ON THE THIRTIETH DAY
OF JUNE, A.D. 1994, AT 10 O'CLOCK A.M.
<TABLE>
<S> <C> <C>
2126867 8100 [SEAL] /s/ EDWARD J. FREEL
950156132 -----------------------------
Edward J. Freel, Secretary of
State
AUTHENTICATION: 7571632
DATE: 07-13-95
</TABLE>
<PAGE> 75
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND
RIGHTS OF SERIES D PREFERRED STOCK
Pursuant to Section 151 of the
Delaware General Corporation Law
The undersigned Chairman of the Board and Secretary, respectively, of
HarCor Energy, Inc., a Delaware corporation (the "Corporation") certify that
pursuant to authority granted to and vested in the Board of Directors of the
Corporation by the provisions of the Certificate of Incorporation and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, its Board of Directors has duly adopted the following
resolutions creating the Series D Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Corporation by Article IV of the Corporation's Certificate of
Incorporation, a series of preferred stock of the Corporation be, and it hereby
is, created out of the authorized but unissued shares of the capital stock of
the Corporation, such series to be designated Series D Preferred Stock (the
"Series D Preferred Stock"), to consist of 200,000 shares, par value $.01 per
share, of which the preferences and relative and other rights, and the
qualifications, limitations or restrictions thereof, shall be (in addition to
those set forth in the Corporation's Certificate of Incorporation) as follows:
1. Certain Definitions.
Unless the context otherwise requires, the terms defined in this
paragraph 1 shall have, for all purposes of this resolution, the meanings
herein specified.
Common Stock. The term "Common Stock" shall mean all shares now or
hereafter authorized of any class of Common Stock of the Corporation and any
other stock of the Corporation, howsoever designated, authorized after the
Issue Date, which has the right (subject always to prior rights of any class or
series of preferred stock) to participate in the distribution of the assets and
earnings of the Corporation without limit as to per share amount.
Dividend Payment Date. The term "Dividend Payment Date" shall have the
meaning set forth in subparagraph 2(a) below.
Dividend Period. The term "Dividend Period" shall have the meaning set
forth in subparagraph 2(a) below.
Final Redemption Date. The term "Final Redemption Date" shall have the
meaning set forth in subparagraph 4(e) below.
<PAGE> 76
Issue Date. The term "Issue Date" shall mean the date that shares of
Series D Preferred Stock are issued by the Corporation.
Junior Stock. The term "Junior Stock" shall mean, (i) for purposes of
paragraph 2 below, the Series E Junior Convertible Preferred Stock, the Common
Stock and any other class or series of stock of the Corporation issued after
the Issue Date not entitled to receive any dividends in any Dividend Period
unless all dividends required to have been paid or declared and set apart for
payment on the Series D Preferred Stock shall have been so paid or declared and
set apart for payment, (ii) for purposes of paragraph 3 below, the Series E
Junior Convertible Preferred Stock, the Common Stock and any other class or
series of stock of the Corporation issued after the Issue Date not entitled to
receive any assets upon the liquidation, dissolution or winding up of the
affairs of the Corporation until the Series D Preferred Stock shall have
received the entire amount to which such stock is entitled upon such
liquidation, dissolution or winding up, and (iii) any other class or series of
stock of the Corporation issued after the Issue Date not entitled to redemption
until the Series D Preferred Stock shall have been redeemed in full.
Parity Stock. The term "Parity Stock" shall mean, (i) for purposes of
paragraph 2 below the Series A 8% Cumulative Convertible Preferred Stock,
Series B Convertible Preferred Stock and Series C Convertible Preferred Stock
of the Corporation and any other class or series of stock of the Corporation
issued after the Issue Date entitled to receive payment of dividends on a
parity with the Series D Preferred Stock, (ii) for purposes of paragrph 3
below, the Series A 8% Cumulative Convertible Preferred Stock, Series B
Convertible Preferred Stock and Series C Convertible Preferred Stock of the
Corporation and any other class or series of stock of the Corporation issued
after the Issue Date entitled to receive assets upon the liquidation,
dissolution or winding up of the affairs of the Corporation on a parity with
the Series D Preferred Stock, and (iii) any other class or series of stock of
the Corporation issued after the Issue Date entitled to redemption on a parity
with the Series D Preferred Stock.
Purchase Agreement. The term "Purchase Agreement" means that certain
Purchase Agreement dated as of June 29, 1994, among the Company and the
investors listed on the signature page thereto, relating to the issuance of the
Series D Preferred Stock.
Purchase Price. The term "Purchase Price" shall mean $100.00 per share.
Qualified Public Offering. The term "Qualified Public Offering" shall
mean the first closing after the initial Issue Date of an underwritten public
offering pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering the offer and sale of Common Stock for the
account of the corporation to the public generally, for which the net proceeds
to the Corporation are not less than $17,500,000.
-2-
<PAGE> 77
Redemption Agent. The term "Redemption Agent" shall have the meaning
set forth in subparagraph 4(d) below.
Redemption Date. The term "Redemption Date" shall have the meaning
set forth in subparagraph 4(c) below.
Redemption Price. The term "Redemption Price" shall mean the price to
be paid upon redemption of the Series D Preferred Stock, as determined in
accordance with subparagraph 4(a) below.
Restricted Payment. The term "Restricted Payment" shall mean (i) any
dividend or other distribution on any shares of the capital stock (other than
dividends or distributions on the Corporation's Series A, B, C or E Preferred
Stock in accordance with their respective terms, or payable solely in shares of
such capital stock or by a Subsidiary to the Corporation) of the Corporation
(except the Series D Preferred Stock), (ii) any payment on account of the
purchase, redemption, retirement or acquisition of (a) any shares of the
capital stock of the Corporation other than the Series D Preferred Stock or (b)
any option, warrant, convertible or exchangeable security (except the warrants
issued pursuant to the Purchase Agreement or pursuant to subparagraphs 2(e) and
2(f) below) or other right to acquire shares of the capital stock of the
Corporation (except the Series D Preferred Stock), or (iii) any payment on
account of the optional purchase, redemption or acquisition or retirement prior
to the stated maturity thereof for value of any Indebtedness (as defined in the
Purchase Agreement) other than Senior Debt (as defined in the Purchase
Agreement) and outstanding warrants to purchase Common Stock of the Corporation
originally issued on or prior to the Closing Date (as defined in the Purchase
Agreement).
Senior Stock. The term "Senior Stock" shall mean, (i) for purposes of
paragraph 2 below, any class or series of stock of the Corporation issued after
the Issue Date ranking senior to the Series D Preferred Stock in respect of the
right to receive dividends, (ii) for purposes of paragraph 3 below, any class
or series of stock of the Corporation issued after the Issue Date ranking
senior to the Series D Preferred Stock in respect of the right to receive
assets upon the liquidation, dissolution or winding up of the affairs of the
Corporation, and (iii) any other class or series of stock of the Corporation
issued after the Issue Date ranking senior to the Series D Preferred Stock in
respect of the right to redemption.
Subsidiary. The term "Subsidiary" shall mean any corporation of which
shares of stock possessing at least a majority of the general voting power in
electing the board of directors are, at the time as of which any determination
is being made, owned by the Corporation, whether directly or indirectly through
one or more Subsidiaries.
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Warrant Exercise Price. The term "Warrant Exercise Price," at any time
of determination, shall mean the exercise price that would have been in effect
at such time of determination for warrants issued pursuant to the terms of the
Purchase Agreement, assuming such warrants were outstanding at such time of
determination and the exercise price for such warrant had been adjusted to such
time pursuant to the terms thereof.
2. Dividends.
(a) Subject to the prior preferences and other rights of any Senior
Stock, the holders of the Series D Preferred Stock shall be entitled to
receive, out of funds legally available for that purpose, cash dividends at the
rate of nine percent (9%) per annum, and, except as provided in subparagraph
2(f), no more. Subject to the provisions of subparagraphs 2(e) and 2(f) below,
such dividends shall be cumulative from the Issue Date and shall be payable in
arrears, when and as declared by the Board of Directors, on March 31, June 30,
September 30 and December 31 of each year (each such date being herein referred
to as a "Dividend Payment Date"), commencing on September 30, 1994. The
quarterly period between consecutive Dividend Payment Dates shall hereinafter
be referred to as a "Dividend Period." Each such dividend shall be paid to the
holders of record of the Series D Preferred Stock as their names appear on the
share register of the Corporation on the corresponding Record Date. As used
above, the term "Record Date" means, with respect to the dividend payable on
March 31, June 30, September 30 and December 31, respectively, of each year,
the preceding March 15, June 15, September 15 and December 15, or such other
record date designated by the Board of Directors of the Corporation with
respect to the dividend payable on such respective Dividend Payment Date.
Dividends on account of arrears for any past Dividend Periods may be declared
and paid, together with any accrued but unpaid interest thereon to and
including the date of payment, at any time, without reference to any Dividend
Payment Date, to holders of record on such date, not exceeding 50 days
preceding the payment date thereof, as may be fixed by the Board of Directors.
(b) Subject to the provisions of subparagraphs 2(e) and 2(f) below, in
the event that full cash dividends are not paid or made available to the
holders of all outstanding shares of the Series D Preferred Stock and of any
Parity Stock, and funds available shall be insufficient to permit payment in
full in cash to all such holders of the preferential amounts to which they are
then entitled, the entire amount available for payment of cash dividends shall
be distributed among the holders of the Series D Preferred Stock and of any
Parity Stock ratably in proportion to the full amount to which they would
otherwise be respectively entitled, any remainder not paid in cash to the
holders of the Series D Preferred Stock shall cumulate as provided in
subparagraph 2(c) below.
(c) If, on any Dividend Paynment Date, the holders of the Series D
Preferred Stock shall not have received the full dividends provided for in
subparagraph 2(e) below, then such dividends shall cumulate and shall accrue
interest to and including the date of payment thereof.
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at the rate of twelve percent (12%) per annum, compounded quarterly, whether or
not earned or declared, with additional dividends thereon for each succeeding
full Dividend Period during which such dividends shall remain unpaid. Unpaid
dividends for any period less than a full Dividend Period shall cumulate on a
day-to-day basis and shall be computed on the basis of a 360 day year.
(d) So long as any shares of the Series D Preferred Stock shall be
outstanding, the Corporation shall not declare or pay on any Junior Stock any
dividend whatsoever, whether in cash, property or otherwise (other than
dividends payable in shares of the class or series upon which such dividends are
declared or paid, or payable in shares of Common Stock with respect to Junior
Stock other than Common Stock, together with cash in lien of fractional shares),
nor shall the Corporation make any distribution on any Junior Stock, nor shall
any monies be paid or made available for a sinking fund for the purchase or
redemption of any Junior Stock, unless all dividends to which the holders of the
Series D Preferred Stock shall have been entitled for all previous Dividend
Periods shall have been paid or declared and a sum of money sufficient for the
payment thereof set apart; provided, however, that the Series E Junior
Convertible Preferred Stock may be redeemed in accordance with its terms.
(e) Until the earlier of (i) the consummation of a Qualified Public
Offering or (ii) the date two years after the initial Issue Date, the
Corporation shall pay on each Dividend Payment Date dividends either in cash or
in shares of Series D Preferred Stock or in any combination thereof. The price
per share of the Series D Preferred Stock that may be issued in lieu of cash
dividends shall be $100.00 per share. If the Corporation shall pay a dividend in
shares of Series D Preferred Stock pursuant to this subparagraph 2(e), then the
Corporation shall issue, along with each share of Series D Preferred Stock so
paid, warrants in substantially the same form as Exhibit B to this Purchase
Agreement (the "Warrant") to purchase from the Corporation a number (rounded to
the nearest whole number) of fully paid and nonassessable shares of Common Stock
as shall equal the fraction, the numerator of which shall equal $100 and (ii)
the denominator of which shall equal the Warrant Exercise Price determined at
the time of issuance of such dividends and the initial exercise price for the
warrant issued therewith shall equal such Warrant Exercise Price.
(f) In the event the Corporation fails for whatever reason to pay full cash
dividends on any Dividend Payment Date occurring after the earlier of (i)
consummation of a Qualified Public Offering and (ii) the date two years after
the initial Issue Date, each holder of Series D Preferred Stock shall, at the
option of the holder, have the right to elect to receive (x) until such time as
full cash dividends are paid in full on all accrued and unpaid dividends or such
holder has received payment of all accrued and unpaid dividends in shares of
Series D Preferred Stock pursuant to clause (y) below, cash dividends on such
holders Series D Preferred Stock at the rate of twelve percent (12%) per annum
(accruing from such Dividend Payment Date), with all such dividends (including
the unpaid dividend) cumulating and accruing interest to and including
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the date of payment thereof at the rate of twelve percent (12%) per annum,
compounded quarterly, or (y) to receive such dividends (or accrued dividends),
including any accrued and unpaid interest thereon, in shares of Series D
Preferred Stock, the price per share of the Series D Preferred Stock being
issued in lieu of cash dividends to be $100.00 per share. If the Corporation
shall pay a dividend in shares of Series D Preferred Stock pursuant to this
subparagraph 2(f), then the Corporation shall issue, along with each share of
Series D Preferred Stock so paid, warrants in substantially the same form as the
Warrant to purchase from the Corporation a number (rounded to the nearest whole
number) of fully paid and nonassessable shares of Common Stock as shall equal
the product of (i) one and one-half (1 1/2) and (ii) the fraction, the numerator
of which shall equal $100, and the denominator of which shall equal the Warrant
Exercise Price determined at the time of issuance of such dividend; and the
initial exercise price for the warrant issued therewith shall equal such Warrant
Exercise Price.
(g) In the event the redemption of 25,000 shares of Series D Preferred
Stock pursuant to the terms of subparagraph 4(a) hereof is not consummated prior
to the first anniversary of the Closing Date (as defined in the Purchase
Agreement), the Corporation shall issue to each holder of shares of Series D
Preferred Stock, for each share so held, warrants in substantially the same form
as the Warrant to purchase from the Corporation a number (rounded to the nearest
whole number) of fully paid and nonassessable shares of Common Stock as shall
equal the fraction, the numerator of which shall equal 200,000 (such number to
be appropriately adjusted in the event the Corporation's Common Stock in
subdivided into a greater number or combined into a lesser number or any time
subsequent to the Closing Date), and the denominator of which shall equal the
number of shares of Series D Preferred Stock then outstanding. The initial
exercise price for such warrants shall equal the Warrant Exercise Price
determined on the first anniversary of the Closing Date.
3. Distributions Upon Liquidation, Dissolution or Winding Up.
In the event of any voluntary or involuntary liquidation, dissolution or
other winding up of the affairs of the Corporation, subject to the prior
preferences and other rights of any Senior Stock, but before any distribution or
payment shall be made to the holders of Junior Stock, the holders of the Series
D Preferred Stock shall be entitled to be paid the Purchase Price of all
outstanding shares of the Series D Preferred Stock as of the date of such
liquidation or dissolution or such other winding up, plus any accrued but unpaid
dividends (including any accrued but unpaid interest thereon), if any, to such
date, and no more, in cash or in property taken at its fair value as determined
by the Board of Directors, or both, at the election of the Board of Directors.
If such payment shall have been made in full to the holders of the Series D
Preferred Stock, and if payment shall have been made in full to the holders of
the Senior Stock and Parity Stock of all amounts to which such holders shall be
entitled, the remaining assets and funds of the Corporation shall be distributed
among the holders of Junior Stock, according to their respective shares and
priorities. If, upon any such liquidation, dissolution or other winding up of
the affairs of the Corporation, the net assets of the Corporation distri-
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butable among the holders of all outstanding shares of the Series D Preferred
Stock and of any Parity Stock shall be insufficient to permit the payment in
full to such holders of the preferential amounts to which they are entitled,
then the entire net assets of the Corporation remaining after the distributions
to holders of any Senior Stock of the full amounts to which they may be entitled
shall be distributed among the holders of the Series D Preferred Stock and of
any Parity Stock ratably in proportion to the full amounts to which they would
otherwise be respectively entitled. Neither the consolidation or merger of the
Corporation into or with another corporation or corporations, nor the sale of
all or substantially all of the assets of the Corporation to another corporation
or corporations shall be deemed a liquidation, dissolution or winding up of the
affairs of the Corporation within the meaning of this paragraph 3.
4. Redemption By the Corporation.
(a) The Series D Preferred Stock may be redeemed by the Corporation in cash
at any time in whole or, (subject to the last sentence of subparagraph 4(b)
below) from time to time in part, at the option of the Corporation, at a price
of $100.00 per share, plus accrued and unpaid dividends (including any accrued
but unpaid interest thereon to and including the Redemption Date (as defined
below) or the Final Redemption Date (as defined below), as applicable (the
"Redemption Price"). So long as the following will not violate any provision of
the Corporation's Senior Debt (as defined in the Purchase Agreement), the
Corporation shall redeem at the Redemption Price (i) one-third (1/3) of the
shares of Series D Preferred Stock outstanding on June 30, 1999 on each of June
30, 1999 and June 30, 2000 and all of the remaining outstanding shares of Series
D Preferred Stock on June 30, 2001, and (ii) all of the outstanding shares of
Series D Preferred Stock upon the occurrence of a "Corporate Change" or an
"Ownership Change" or a Change of Control (as defined in such Senior Debt). In
the event the Corporation shall be unable to redeem as provided in clauses (i)
or (ii) above in this subparagraph 4(a) the shares of Series D Preferred Stock
solely because such redemption would violate provisions of the Senior Debt, each
holder of Series D Preferred Stock shall, at the option of the holder, have the
right to elect to receive (x) from the date the Corporation would have otherwise
been obligated to redeem such shares (the "15% Date") until the earlier of such
time as (1) the Corporation is able to pay the Redemption Price without
violating provisions of the Senior Debt or (2) such holder has otherwise been
paid the Redemption Price, cash dividends on such holders Series D Preferred
Stock at the rate of fifteen percent (15%) per annum (accruing from the 15%
Date), with all such dividends (including the unpaid dividend) cumulating and
accruing interest to and including the date of payment thereof at the rate of
fifteen percent (15%) per annum, compounded quarterly, or (y) to receive such
dividends (or accrued dividends), including any accrued and unpaid interest
thereon, in shares of Series D Preferred Stock, the price per share of the
Series D Preferred Stock being issued in lieu of cash dividends to be $100.00
per share. If the Corporation shall pay a dividend in shares of Series D
Preferred Stock pursuant to this subparagraph 4(a), then the Corporation shall
issue, along with each share of Series D Preferred Stock so paid, warrants in
substantially the same form as the Warrant to purchase from the Corporation a
number (rounded to the nearest whole
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number) of fully paid and nonassessable shares of Common Stock as shall be
determined in accordance with the formula provided in subparagraph 2(f) hereof.
A "Corporate Change" shall mean a consolidation with or merger of the
Corporation with or into another corporation or entity, or any sale, lease or
conveyance to another corporation or entity of the assets of the Corporation as
an entirety or substantially as an entirety, in any of which transactions the
stockholders of the Corporation after completion of any such transaction own
less than fifty percent (50%) of the voting power in the election of directions
generally of the other corporation or entity. An "Ownership Change" with respect
to the Corporation shall be deemed to have occurred at such time as any person
(other than Mark G. Harrington) together with any of its Affiliates or
Associates (as defined below) becomes the beneficial owner, directly or
indirectly, of more than 50% of the outstanding Common Stock of the Corporation
pursuant to a transaction that does not constitute a Corporate Change with
respect to the Corporation. An "Affiliate" of a specified person is a person
that directly or indirectly controls, or is controlled by, or is under common
control with, the person specified. An "Associate" of a person means (1) any
corporation or organization, other than the Corporation or any majority owned
subsidiary of the Corporation, of which the person is an officer or partner or
is, directly or indirectly, the beneficial owner of 10% or more of any class of
equity securities; (2) any trust or estate in which the person has a substantial
beneficial interest or as to which the person serves as trustee or in a similar
fiduciary capacity; and (3) any relative or spouse of the person or any relative
of the spouse, who has the same home as the person or who is a director or
officer of the person or any of its parents or subsidiaries. As used herein, a
person shall be deemed to have "beneficial ownership" with respect to, and shall
be deemed to "beneficially own," any securities of the Corporation in accordance
with Section 13 of the Securities Exchange Act of 1934, as amended, and the
rules and regulations (including Rule 13d-3, Rule 13d-5 and any successor rules)
promulgated by the Securities and Exchange Commission thereunder. In addition,
the Corporation shall redeem 25,000 shares of Series D Preferred Stock at the
Redemption Price immediately following the consummation of a Qualified Public
Offering.
(b) If less than all of the outstanding shares of Series D Preferred Stock
are to redeemed, such shares shall be redeemed pro rata to the extent reasonably
practicable.
(c) Notice of every proposed redemption of the Series D Preferred Stock
shall be sent by or on behalf of the Corporation, by first class mail postage
prepaid, to the holders of record of the shares to be redeemed at their
respective addresses as they shall appear on the records of the Corporation, not
less than thirty (30) days nor more than sixty (60) days prior to the date fixed
for redemption (the "Redemption Date") (i) notifying such holders of the
election of the Corporation to redeem such shares and of the date of redemption,
(ii) stating the place or places at which the shares called for redemption
shall, upon presentation and surrender of the certificates evidencing such
shares, be redeemed, and the Redemption Price therefor, and (iii) stating the
name and address of any Redemption Agent selected by the Corporation in
accordance with subparagraph 4(d) below, and the name and address of the
Corporation's
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transfer agent for the Series D Preferred Stock. The Corporation may act as the
transfer agent for the Series D Preferred Stock.
(d) The Corporation may act as the redemption agent to redeem the Series D
Preferred Stock. The Corporation may also appoint as its agent for such purpose
a bank or trust company in good standing, organized under the laws of the United
States of America or any jurisdiction thereof, and having capital, surplus and
undivided profits aggregating at least Twenty Million Dollars ($20,000,000), and
may appoint any one or more additional such agents which shall in each case be a
bank or trust company in good standing organized under the laws of the United
States of America or of any jurisdiction thereof, having an office or offices in
the City of Houston, Texas, or such other place as shall have been designated by
the Corporation, and having capital, surplus and undivided profits aggregating
at least Twenty Million Dollars ($20,000,000). The Corporation or such bank or
trust company are hereinafter referred to as the "Redemption Agent." Following
such appointment and prior to any redemption, the Corporation shall deliver to
the Redemption Agent irrevocable written instructions authorizing the Redemption
Agent, on behalf and at the expense of the Corporation, to cause such notice of
redemption to be duly mailed as herein provided as soon as practicable after
receipt of such irrevocable instructions and in accordance with the above
provisions. All funds necessary for the redemption shall be deposited with the
Redemption Agent in trust at least two business days prior to the Redemption
Date, for the pro rata benefit of the holders of the shares so called for
redemption, so as to be and continue to be available therefor. Neither failure
to mail any such notice to one or more such holders nor any defect in any notice
shall affect the sufficiency of the proceedings for redemption as to other
holders.
(e) If notice of redemption shall have been given as hereinbefore provided,
and the Corporation shall not default in the payment of the Redemption Price,
then each holder of shares called for redemption shall be entitled to all
preferences, relative and other rights accorded by this resolution until and
including the Redemption Date. If the Corporation shall default in making
payment or delivery as aforesaid on the Redemption Date, then each holder of the
shares called for redemption shall be entitled to all preferences, relative and
other rights accorded by this resolution until and including the date (the
"Final Redemption Date") when the Corporation makes payment or delivery as
aforesaid to the holders of the Series D Preferred Stock. From and after the
Redemption Date or, if the Corporation shall default in making payment or
delivery as aforesaid, the Final Redemption Date, the shares called for
redemption shall no longer be deemed to be outstanding, and all rights of the
holders of such shares shall cease and terminate, except the right of the
holders of such shares, upon surrender of certificates therefor, to receipt of
amounts to be paid hereunder. The deposit of monies in trust with the Redemption
Agent shall be irrevocable except that the Corporation shall be entitled to
receive from the Redemption Agent the interest or other earnings, if any, earned
on any monies so deposited in trust, and the holders of any shares redeemed
shall have no claim to such interest or other earnings, and any balance of
monies so deposited by the Corporation and unclaimed by the holders of the
Series D Preferred Stock entitled thereto at the expiration
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of the later of (i) June 30, 2003 and (ii) two (2) years from the Final
Redemption Date shall be repaid, together with any interest or other earnings
thereon, to the Corporation, and after any such repayment, the holders of the
shares entitled to the funds so repaid to the Corporation shall look only to the
Corporation for such payment, without interest.
5. Voting Rights.
(a) In addition to any other rights provided in the Corporation's Bylaws or
by law, each share of Series D Preferred Stock shall entitle the holder thereof
to such number of votes per share as shall equal the fraction, the numerator of
which shall equal $100 and the denominator of which shall equal the Warrant
Exercise Price determined on the record date for determining the holders of
Common Stock entitled to vote on the matter submitted thereto, and each share of
Series D Preferred Stock shall be entitled to vote on all matters as to which
holders of Common Stock shall be entitled to vote, in the same manner and with
the same effect as such holders of Common Stock, voting together with the
holders of Common Stock as one class; provided, however, that notwithstanding
anything to the contrary stated in this Series D Preferred Stock Certificate of
Designation, the voting rights of the Series D Preferred Stock provided by this
subparagraph 5(a) are expressly subject to the requirements for listing on the
National Market as specified by the National Association of Securities Dealers,
Inc. and therefore shall be modified, to the extent absolutely necessary (such
modification to include, without limitation, a restriction on the number of
votes permitted per share or change in the method of determining the number of
votes each share of Series D Preferred Stock is entitled), to permit, at any
time, the immediate inclusion of the Common Stock of the Corporation in the
NASDAQ National Market System upon application therefor; provided that such
immediate inclusion is prevented solely as a result of the additional voting
rights provided by this subparagraph 5(a). Nothing in the foregoing shall
prevent, if required in connection with such inclusion, the nullification of all
additional voting rights provided by this subparagraph 5(a).
(b) At any time while a minimum of twenty-five percent (25%) of the shares
of Series D Preferred Stock remain outstanding, the holders of the Series D
Preferred Stock, voting separately as a class, shall have the right to elect one
(1) member of the Board of Directors of the Corporation. At any meeting held for
the purpose of electing directors at which the holders of Series D Preferred
Stock shall have the right to elect a director as provided in this subparagraph
(b), the presence, in person or by proxy, of the holders of a majority of the
voting power of such Series D Preferred Stock then outstanding shall be required
to constitute a quorum of such Series D Preferred Stock for such election. At
any such meeting or adjournment thereof, the absence of such a quorum of holders
of Series D Preferred Stock shall not prevent the election of directors other
than the directors to be elected by holders of such Series D Preferred Stock
pursuant to this subparagraph (b), and the absence of a quorum for the election
of such other directors shall not prevent the election of the director to be
elected by the holders of Series D Preferred Stock as provided in this
subparagraph (b), and in the absence of either or both of such quorums, the
holders of a majority of the voting power
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present in person or by proxy of the class of stock which lacks a quorum shall
have the power to adjourn the meeting. A vacancy in the directorship to be
elected by the holders of Series D Preferred Stock pursuant to this subparagraph
(b) may be filled only by vote or written consent of a majority in interest of
such Series D Preferred Stock, at the time outstanding.
(c) So long as any shares of Series D Preferred Stock remain outstanding,
the Corporation shall not, without the affirmative consent or approval of the
holders of shares representing at least a majority of the voting power of the
Series D Preferred Stock then outstanding, acting separately as one class: (i)
amend, alter or repeal (whether by merger, consolidation or otherwise) any of
the provisions of the Certificate of Incorporation of the Corporation which
would in any way adversely affect the rights of the holders of Series D
Preferred Stock, (ii) issue any Senior Stock or Parity Stock; (iii) sell, lease
or convey all, or substantially all, of the assets of the Corporation; or (iv)
make any Restricted Payment except that provided that no dividends on the Series
D Preferred Stock shall be in arrears, redemptions of shares of Parity Stock
will be permitted if the Series D Preferred Stock is redeemed simultaneously on
a pro forma basis, and provided further that the Series E Preferred Stock may be
redeemed in accordance with its mandatory redemption terms.
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6. Exclusion of Other Rights.
Except as may otherwise be required by law, the shares of Series D
Preferred Stock shall not have any preferences or relative, participating,
optional or other special rights, other than those specifically set forth in
this resolution (as such resolution may be amended from time to time) and in the
Corporation's Certificate of Incorporation. The shares of Series D Preferred
Stock shall have no preemptive or subscription rights.
7. Headings of Subdivisions.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
8. Severability of Provisions.
If any right, preference or limitation of the Series D Preferred Stock set
forth in this resolution (as such resolution may be amended from time to time)
is invalid, unlawful or incapable of being enforced by reason of any rule of law
or public policy, all other rights, preferences and limitations set forth in
this resolution (as so amended) which can be given effect without the invalid,
unlawful or unenforceable right, preference or limitation shall nevertheless,
remain in full force and effect, and no right, preference or limitation herein
set forth shall be deemed dependent upon any other such right, preference or
limitation unless so expressed herein.
9. Status of Reacquired Shares.
Shares of Series D Preferred Stock which have been issued and reacquired in
any manner shall (upon compliance with any applicable provisions of the laws of
the State of Delaware) have the status of authorized and unissued shares of
Preferred Stock issuable in series undesignated as to series and may be
redesignated and reissued.
IN WITNESS WHEREOF, this Certificate has been duly executed by the
undersigned Chairman of the Board and Secretary of the Corporation this 29th day
of June, 1994.
HARCOR ENERGY, INC.
By: /s/ MARK G. HARRINGTON
-------------------------------
Mark G. Harrington
Chairman of the Board
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ATTEST:
/s/ GARY S. PECK
- --------------------------------
Gary S. Peck
Secretary
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<PAGE> 88
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "HARCOR ENERGY, INC.", FILED IN THIS OFFICE ON THE THIRTIETH DAY
OF JUNE, A.D. 1994, AT 10:01 O'CLOCK A.M.
<TABLE>
<S> <C> <C>
2126867 8100 [SEAL] /s/ EDWARD J. FREEL
950156132 ------------------------------
Edward J. Freel, Secretary of
State
AUTHENTICATION: 7571633
DATE: 07-13-95
</TABLE>
<PAGE> 89
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND
RIGHTS OF SERIES E JUNIOR CONVERTIBLE PREFERRED STOCK
PURSUANT TO SECTION 151 OF THE
DELAWARE GENERAL CORPORATION LAW
The undersigned Chairman of the Board and Secretary, respectively, of
HarCor Energy, Inc., a Delaware corporation (the "Corporation") certify that
pursuant to authority granted to and vested in the Board of Directors of the
Corporation by the provisions of the Certificate of Incorporation and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, its Board of Directors has duly adopted the following
resolutions creating the Series E Junior Convertible Preferred Stock.
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation by Article IV of the Corporation's Certificate of
Incorporation, a series of preferred stock of the Corporation be, and it hereby
is, created out of the authorized but unissued shares of the capital stock of
the Corporation, such series to be designated Series E Junior Convertible
Preferred Stock (the "Series E Preferred Stock"), to consist of 30,000 shares,
par value $.01 per share, of which the preferences and relative and other
rights, and the qualifications, limitations, or restrictions thereof, shall be
(in addition to those set forth in the Corporation's Certificate of
Incorporation) as follows:
1. Certain Definitions.
Unless the context otherwise requires, the terms defined in this paragraph
1 shall have, for all purposes of this resolution, the meanings herein
specified.
Common Stock. The term "Common Stock" shall mean all shares now or
hereafter authorized of any class of Common Stock of the Corporation and any
other stock of the Corporation, howsoever designated, authorized after the Issue
Date, which has the right (subject always to prior rights of any class or series
of preferred stock) to participate in the distribution of the assets and
earnings of the Corporation without limit as to per share amount.
Conversion Date. The term "Conversion Date" shall have the meaning set
forth in subparagraph 5(c) below.
Conversion Price. The term "Conversion Price" shall mean the price per
share of Common Stock used to determine the number of shares of Common stock
deliverable upon conversion of a share of the Series E Preferred Stock, which
price shall initially be $3.50 per share, subject to adjustment in accordance
with the provisions of paragraph 5 below.
Current Market Price. The term "Current Market Price" shall have the
meaning set forth in subparagraph 5(f) below.
Dividend Payment Date. The term "Dividend Payment Date" shall have the
meaning set forth in subparagraph 2(a) below.
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Dividend Period. The term "Dividend Period" shall have the meaning set
forth in subparagraph 2(a) below.
Final Redemption Date. The term "Final Redemption Date" shall have the
meaning set forth in subparagraph 4(f) below.
Issue Date. The term "Issue Date" shall mean the date that shares of Series
E Preferred Stock are first issued by the Corporation.
Junior Stock. The term "Junior Stock" shall mean, for purposes of paragraph
2 below, the Common Stock and any other class or series of stock of the
Corporation issued after the Issue Date not entitled to receive any dividends in
any Dividend Period unless all dividends required to have been paid or declared
and set apart for payment on the Series E Preferred Stock shall have been so
paid or declared and set apart for payment and, for purposes of paragraph 3
below, the Common Stock and any other class or series of stock of the
Corporation issued after the Issue Date not entitled to receive any assets upon
the liquidation, dissolution or winding up of the affairs of the Corporation
until the Series E Preferred Stock shall have received the entire amount to
which such stock is entitled upon such liquidation, dissolution or winding up.
Parity Stock. The term "Parity Stock" shall mean, for purposes of paragraph
2 below and class or series of stock of the Corporation issued after the Issue
Date entitled to receive payment of dividends on a parity with the Series E
Preferred Stock and, for purposes of paragraph 3 below, and other class or
series of stock of the Corporation issued after the issue Date entitled to
receive assets upon the liquidation, dissolution or winding up of the affairs of
the Corporation on a parity with the Series E Preferred Stock.
Purchase Price. The term "Purchase Price" shall mean $100.00 per share.
Redemption Agent. The term "Redemption Agent" shall have the meaning set
forth in subparagraph 4(e) below.
Redemption Date. The term "Redemption Date" shall have the meaning set
forth in subparagraph 4(d) below.
Redemption Price. The term "Redemption Price" shall mean the price to be
paid upon redemption of the Series E Preferred Stock, as determined in
accordance with subparagraph 4(a) below.
Senior Stock. The term "Senior Stock" shall mean, for purposes of paragraph
2 below, the Series A 8% Cumulative Convertible Preferred Stock, Series B
Convertible Preferred Stock, Series C Convertible Preferred Stock, and Series D
Preferred Stock, and any other class or series of stock of the Corporation
issued after the Issue Date ranking senior to the Series E Preferred Stock in
respect of the right to receive dividends, and, for purposes of paragraph 3
below, the Series A 8% Cumulative Convertible Preferred Stock, Series B
Convertible Preferred Stock, Series C Convertible Preferred Stock, and Series D
Preferred Stock, and any other class
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or series of stock of the Corporation issued after the Issue Date ranking senior
to the Series E Preferred Stock in respect of the right to receive assets upon
the liquidation, dissolution or winding up of the affairs of the Corporation.
SUBSIDIARY. The term "Subsidiary" shall mean any corporation of which
shares of stock possessing at least a majority of the general voting power in
electing the board of directors are, at the time as of which any determination
is being made, owned by the Corporation, whether directly or indirectly through
one or more Subsidiaries.
2. Dividends.
(a) Subject to the prior preferences and other rights of any Senior Stock,
the holders of the Series E Preferred Stock shall be entitled to receive, out of
funds legally available for that purpose, dividends at the rate of $4.00 per
share per annum until June 30, 1995, and thereafter at the rate of $9.00 per
share per annum, and no more. Subject to the provisions of subparagraphs 2(b)
and 2(e) below, dividends shall be payable, at the option of the Corporation,
either in cash or in shares of Common Stock. Such dividends shall be cumulative
from the Issue Date and shall be payable in arrears, when and as declared by the
Board of Directors, on March 31, June 30, September 30 and December 31 of each
year (each such date being herein referred to as a "Dividend Payment Date"),
commencing on September 30, 1994. the quarterly period between consecutive
Dividend Payment Dates shall hereinafter be referred to as a "Dividend Period."
Each such dividend shall be paid to the holders of record of the Series E
Preferred Stock as their names appear on the share register of the Corporation
on the corresponding Record Date. As used above, the term "Record Date" means,
with respect to the dividend payable on March 31, June 30, September 30 and
December 31, respectively, of each year, the preceding March 15, June 15,
September 15 and December 15, or such other record date designated by the Board
of Directors of the Corporation with respect to the dividend payable on such
respective Dividend Payment Date. Dividends on account of arrears for any past
Dividend Periods may be declared and paid at any time, without reference to any
Dividend Payment Date, to holders of record on such date, not exceeding 50 days
preceding the payment date thereof, as may be fixed by the Board of Directors.
(b) In the event that the Corporation chooses to pay dividends in cash and
full cash dividends are not paid or made available to holders of all outstanding
shares of the Series E Preferred Stock and of any Parity Stock, and funds
available shall be insufficient to permit payment in full in cash to all such
holders of the preferential amounts to which they are then entitled, the entire
amount available for payment of cash dividends shall be distributed among the
holders of the Series E Preferred Stock and of any Parity Stock ratably in
proportion to the full amount to which they would otherwise be respectively
entitled, any remainder not paid in cash to the holders of the Series E
Preferred Stock shall cumulate as provided in subparagraph 2(c) below or be paid
in the form of shares of Common Stock.
(c) If, on any Dividend Payment Date, the holders of the Series E Preferred
Stock shall not have received the full dividends provided for in the other
provisions of this paragraph 2, then such dividends shall cumulate without
interest, whether or not earned or declared, with additional dividends thereon
for each succeeding full Dividend Period during
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which such dividends shall remain unpaid. Unpaid dividends for any period less
than a full Dividend Period shall cumulate on a day-to-day basis and shall be
computed on the basis of a 360 day year.
(d) So long as any shares of the Series E Preferred Stock shall be
outstanding, the Corporation shall not declare or pay on any Junior Stock any
dividend whatsoever, whether in cash, property or otherwise (other than
dividends payable in shares of the class or series upon which such dividends are
declared or paid, or payable in shares of Common Stock with respect to Junior
Stock other than Common Stock, together with cash in lieu of fractional shares),
nor shall the Corporation make any distribution on any Junior Stock, nor shall
any Junior Stock be purchased or redeemed by the Corporation or any Subsidiary,
nor shall any monies be paid or made available for a sinking fund for the
purchase or redemption of any Junior Stock, unless all dividends to which the
holders of the Series E Preferred Stock shall have been entitled for all
previous Dividend Periods shall have been paid or declared and a sum of money
sufficient for the payment thereof set apart.
(e) The price per share of the Common Stock that may be issued in lieu of
cash dividends shall be the Current Market Price on the Dividend Payment Date.
3. Distributions Upon Liquidation, Dissolution or Winding Up.
In the event of any voluntary or involuntary liquidation, dissolution or
other winding up of the affairs of the Corporation, subject to the prior
preferences and other rights of any Senior Stock, but before any distribution or
payment shall be made to the holders of Junior Stock, the holders of the Series
E Preferred Stock shall be entitled to be paid the Purchase Price of all
outstanding shares of the Series E Preferred Stock as of the date of such
liquidation or dissolution or such other winding up, plus any accrued but unpaid
dividends, if any, to such date, and no more, in cash or in property taken at
its fair value as determined by the Board of Directors, or both, at the election
of the Board of Directors. If such payment shall have been made in full to the
holders of the Series E Preferred Stock, and if payment shall have been made in
full to the holders of any Senior Stock and Parity Stock of all amounts to which
such holders shall be entitled, the remaining assets and funds of the
Corporation shall be distributed among the holders of Junior Stock, according to
their respective shares and priorities. If, upon any such liquidation,
dissolution or other winding up of the affairs of the Corporation, the net
assets of the Corporation distributable among the holders of all outstanding
shares of the Series E Preferred Stock and of any Parity Stock shall be
insufficient to permit the payment in full to such holders of the preferential
amounts to which they are entitled, then the entire net assets of the
Corporation remaining after the distributions to holders of any Senior Stock of
the full amounts to which they may be entitled shall be distributed among the
holders of the Series E Preferred Stock and of any Parity Stock ratably in
proportion to the full amounts to which they would otherwise be respectively
entitled. Neither the consolidation or merger of the Corporation into or with
another corporation or corporations, nor the sale of all or substantially all of
the assets of the Corporation to another corporation or corporations shall be
deemed a liquidation, dissolution or winding up of the affairs of the
Corporation within the meaning of this paragraph 3.
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4. Redemption By the Corporation.
(a) The Series E Preferred Stock may be redeemed by the Corporation in cash
at any time in whole or, (subject to the last sentence of subparagraph 4(c)
below) from time to time in part, at the option of the Corporation, at a price
of $110.00 per share, plus accumulated and unpaid dividends (the "Redemption
Price").
(b) The Corporation shall redeem the Series E Preferred Stock in cash, at
the Redemption Price as follows:
(i) If the Corporation completes an underwritten public offering of
its securities and the net proceeds of such public offering received by the
Corporation equal or exceed $20.8 million, the Corporation shall redeem all
of the Series E Preferred Stock;
(ii) If the Corporation completes an underwritten public offering of
its securities and the net proceeds of such public offering received by the
Corporation equal or exceed $17.5 million, but are less than $20.8 million,
the Corporation shall redeem a number of shares of Series E Preferred stock
equal to (x) the net proceeds of such offering in excess of $17.5 million,
divided by (y) the Redemption Price; and
(iii) If the Corporation completes an underwritten public offering of
its securities as set forth in subparagraph (ii) above, the Corporation
shall redeem all of the remaining Series E Preferred Stock out of the
proceeds received by the Corporation from the next underwritten public
offering of its securities.
(c) If less than all of the outstanding shares of the Series E Preferred
Stock are to be redeemed, such shares shall be redeemed pro rata to the extent
reasonably practicable.
(d) Notice of every proposed redemption of the Series E Preferred Stock
shall be sent by or on behalf of the Corporation, by first class mail, postage
prepaid, to the holders of record of the shares to be redeemed at their
respective addresses as they shall appear on the records of the Corporation, not
less than thirty (30) days nor more than sixty (60) days prior to the date fixed
for redemption (the "Redemption Date"), (i) notifying such holders of the
election of the Corporation to redeem such shares and of the date of redemption,
(ii) the date on which the shares cease to be convertible, and the Conversion
Price, (iii) stating the place or places at which the shares called for
redemption shall, upon presentation and surrender of the certificates evidencing
such shares, be redeemed, and the Redemption Price therefor, and (iv) stating
the name and address of any Redemption Agent selected by the Corporation in
accordance with subparagraph 4(e) below, and the name and address of the
Corporation's transfer agent for the Series E Preferred Stock. The Corporation
may act as the transfer agent for the Series E Preferred Stock.
(e) The Corporation may act as the redemption agent to redeem the Series E
Preferred Stock. The Corporation may also appoint as its agent for such purpose
a bank or trust company in good standing, organized under the laws of the United
States of America or
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any jurisdiction thereof, and having capital, surplus and undivided profits
aggregating at least Twenty Million Dollars ($20,000,000), and may appoint any
one or more additional such agents which shall in each case be a bank or trust
company in good standing organized under the laws of the United States of
America or of any jurisdiction thereof, having an office or offices in the City
of Houston, Texas, or such other place as shall have been designated by the
Corporation, and having capital, surplus and undivided profits aggregating at
least Twenty Million Dollars ($20,000,000). The Corporation or such bank or
trust company are hereinafter referred to as the "Redemption Agent". Following
such appointment and prior to any redemption, the Corporation shall deliver to
the Redemption Agent irrevocable written instructions authorizing the Redemption
Agent, on behalf and at the expense of the Corporation, to cause such notice of
redemption to be duly mailed as herein provided as soon as practicable after
receipt of such irrevocable instructions and in accordance with the above
provisions. All funds necessary for the redemption shall be deposited with the
Redemption Agent in trust at least two business days prior to the Redemption
Date, for the pro rata benefit of the holders of the shares so called for
redemption, so as to be and continue to be available therefor. Neither failure
to mail any such notice to one or more such holders nor any defect in any notice
shall affect the sufficiency of the proceedings for redemption as to other
holders.
(f) If notice of redemption shall have been given as hereinbefore provided,
and the Corporation shall not default in the payment of the Redemption Price,
then each holder of shares called for redemption shall be entitled to all
preferences, relative and other rights accorded by this resolution until and
including the date prior to the Redemption Date, except as set forth in
paragraph 5 hereof. If the Corporation shall default in making payment or
delivery as aforesaid on the Redemption Date, then each holder of the shares
called for redemption shall be entitled to all preferences, relative and other
rights accorded by this resolution until and including the date prior to the
date (the "Final Redemption Date") when the Corporation makes payment or
delivery as aforesaid to the holders of the Series E Preferred Stock, except as
set forth in paragraph 5 hereof. From and after the Redemption Date or, if the
Corporation shall default in making payment or delivery as aforesaid, the Final
Redemption Date, the shares called for redemption shall no longer be deemed to
be outstanding, and all rights of the holders of such shares shall cease and
terminate, except the right of the holders of such shares, upon surrender of
certificates therefor, to receipt of amounts to be paid hereunder. The deposit
of monies in trust with the Redemption Agent shall be irrevocable except that
the Corporation shall be entitled to receive from the Redemption Agent the
interest or other earnings, if any, earned on any monies so deposited in trust,
and the holders of any shares redeemed shall have no claim to such interest or
other earnings, and any balance of monies so deposited by the Corporation and
unclaimed by the holders of the Series E Preferred Stock entitled thereto at the
expiration of two (2) years from the Redemption Date (or the Final Redemption
Date, as applicable) shall be repaid, together with any interest or other
earnings thereon, to the Corporation, and after any such repayment, the holders
of the shares entitled to the funds so repaid to the Corporation shall look only
to the Corporation for such payment, without interest.
5. Conversion Rights.
The Series E Preferred Stock shall be convertible into Common Stock as
follows:
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(a) Optional Conversion. Subject to and upon compliance with the provisions
of this paragraph 5, the holder of any shares of the Series E Preferred Stock
shall have the right at such holder's option, at any time or from time to time,
to convert any or all of the shares of Series E Preferred Stock, into fully paid
and nonassessable shares of Common Stock at the Conversion Price (as hereinafter
defined) in effect on the Conversion Date (as hereinafter defined) upon the
terms hereinafter set forth. In case any share of Series E Preferred Stock is
called for redemption, such right of conversion shall terminate at the close of
business on the fifteenth day prior to the Redemption Date or, if the
Corporation shall default in the payment of the Redemption Price, at the close
of business on the fifth day prior to the Final Redemption Date.
(b) Conversion Price. Each share of Series E Preferred Stock shall be
converted into a number of shares of Common Stock determined by dividing (i)
Purchase Price by (ii) the Conversion Price in effect on the Conversion Date.
The Conversion Price at which shares of Common Stock shall initially be issuable
upon conversion of the shares of the Series E Preferred Stock shall be $3.50.
The Conversion Price shall be subject to adjustment as set forth in subparagraph
5(e). No payment or adjustment shall be made for any dividends on the Series E
Preferred Stock or Common Stock issuable upon such conversion.
(c) Mechanics of Conversion. The holder of any shares of Series E Preferred
Stock may exercise the conversion right specified in subparagraph 5(a) by
surrendering to the Corporation or any transfer agent of the Corporation the
certificate or certificates for the shares to be converted, accompanied by
written notice specifying the number of shares to be converted. Conversion shall
be deemed to have been effected on the date when delivery of notice of an
election to convert and certificates for shares is made, and such date is
referred to herein as the "Conversion Date." Subject to the provisions of
subparagraph 5(e)(v), as promptly as practicable thereafter (and after surrender
of the certificate or certificates representing shares of Series E Preferred
Stock to the Corporation) the Corporation shall issue and deliver to or upon the
written order of such holder a certificate or certificates for the number of
full shares of Common Stock to which such holder is entitled and a check or cash
with respect to any fractional interest in a share of Common Stock as provided
in subparagraph 5(d). Subject to the provisions of subparagraph 5(e)(v), the
person in whose name the certificate or certificates for Common Stock are to be
issued shall be deemed to have become a holder of record of such Common Stock on
the applicable Conversion Date. Upon conversion of only a portion of the number
of shares covered by a certificate representing shares of Series E Preferred
Stock surrendered for conversion, the Corporation shall issue and deliver to or
upon the written order of the holder of the certificate so surrendered for
conversion, at the expense of the Corporation, a new certificate covering the
number of shares of Series E Preferred Stock representing the unconverted
portion of the certificate so surrendered.
(d) Fractional Shares. No fractional shares of Common Stock or scrip shall
be issued upon conversion of shares of Series E Preferred Stock. If more than
one share of Series E Preferred Stock shall be surrendered for conversion at any
one time by the same holder, the number of full shares of Common Stock issuable
upon conversion thereof shall be computed on the basis of the aggregate number
of shares of Series E Preferred Stock so surrendered.
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Instead of any fractional shares of Common Stock which would otherwise be
issuable upon conversion of any shares of Series E Preferred Stock, the
Corporation shall pay a cash adjustment in respect of such fractional interest
in an amount equal to that fractional interest of the then Current Market Price.
(e) Conversion Price Adjustments. The Conversion Price shall be subject to
adjustment from time to time as follows:
(i) Stock Dividends, Subdivisions, Reclassifications or
Combinations. If the Corporation shall (1) declare a dividend or make a
distribution on its Common Stock in shares of its Common Stock, (2)
subdivide or reclassify the outstanding shares of Common Stock into a
greater number of shares, or (3) combine or reclassify the outstanding
Common Stock into a smaller number of shares, the Conversion Price in
effect at the time of the record date for such dividend or distribution or
the effective date of such subdivision, combination or reclassification
shall be proportionately adjusted so that the holder of any shares of
Series E Preferred Stock surrendered for conversion after such date shall
be entitled to receive the number of shares of Common Stock which he would
have owned or been entitled to receive had such Series E Preferred Stock
been converted immediately prior to such date. Successive adjustments in
the Conversion Price shall be made whenever any event specified above shall
occur.
(ii) Other Distributions. In case the Corporation shall fix a record
date for the making of a distribution to all holders of shares of its
Common Stock (1) of shares of any class other than its Common Stock or (2)
of evidence of indebtedness of the Corporation or any Subsidiary or (3) of
assets (excluding cash dividends or distributions, and dividends or
distributions referred to in subparagraph 5(e)(i) above), or (4) of rights
or warrants each holder of a share of Series E Preferred Stock shall, upon
the exercise of his right to convert after such record date, receive, in
addition to the shares of Common Stock to which he is entitled, the amount
of such assets (or, at the option of the Corporation, the sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) that would have been distributed to such
holder if he had exercised his right to convert immediately prior to the
record date for such determination.
(iii) Consolidation, Merger, Sale, Lease or Conveyance. In case of any
consolidation with or merger of the Corporation with or into another
corporation, or in case of any sale, lease or conveyance to another
corporation of the assets of the Corporation as an entirety or
substantially as an entirety, each share of Series E Preferred Stock shall
after the date of such consolidation, merger, sale, lease or conveyance be
convertible into the number of shares of stock or other securities or
property (including cash) to which the Common Stock issuable (at the time
of such consolidation, merger, sale, lease or conveyance) upon conversion
of such share of Series E Preferred Stock would have been entitled upon
such consolidation, merger, sale, lease or conveyance. In any such case, if
necessary, the provisions set forth herein with respect to the rights and
interests thereafter of the holders of the shares of Series E Preferred
Stock shall be appropriately adjusted so as to be applicable, as nearly as
may reasonably be, to any shares of stock or other securities or property
thereafter deliverable on the conversion of the shares of Series E
Preferred Stock.
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(iv) Rounding of Calculations; Minimum Adjustment. All calculations
under the subparagraph (e) shall be made to the nearest cent or to the
nearest one hundredth (1/100th) of a share, as the case may be. Any
provision of this paragraph 5 to the contrary notwithstanding, no
adjustment in the Conversion Price shall be made if the amount of such
adjustment would be less than $0.05 until the end of three years after such
adjustment would otherwise have been required, but any such amount shall be
carried forward and an adjustment with respect thereto shall be made at the
time of and together with any subsequent adjustment which, together with
such amount any other amount or amounts so carried forward, shall aggregate
$0.05 or more.
(v) Timing of Issuance of Additional Common Stock Upon Certain
Adjustments. In any case in which the provisions of this subparagraph (e)
shall require that any adjustment shall become effective immediately after
a record date for an event, the Corporation may defer until the occurrence
of such event (A) issuing to the holder of any share of Series E Preferred
Stock converted after such record date and before the occurrence of such
event the additional shares of Common Stock issuable upon such conversion
by reason of the adjustment required by such event over and above the
shares of Common Stock issuable upon such conversion before giving effect
to such adjustment and (B) paying to such holder any amount of cash in lieu
of a fractional share of Common Stock pursuant to subparagraph (d) of this
paragraph 5, provided that the Corporation upon request shall deliver to
such holder a due bill or other appropriate instrument evidencing such
holder's right to receive such additional shares, and such cash, upon the
occurrence of the event requiring such adjustment.
(f) Current Market Price. The Current Market Price at any date shall mean,
in the event the Common Stock is publicly traded, the average of the daily
closing prices per share of Common Stock for 30 consecutive trading days ending
no more than 15 business days before such date (as adjusted for any stock
dividend, split, combination or reclassification that took effect during such 30
business day period). The closing price for each day shall be the last reported
sale price regular way or, in case no such reported sale takes place on such
day, the average of the last closing bid and asked prices regular way, in either
case on the principal national securities exchange on which the Common Stock is
listed or admitted to trading, or if not listed or admitted to trading on any
national securities exchange, the closing sale price for such day reported by
NASDAQ, if the Common Stock is traded over-the-counter and quoted in the
National Market System, or if the Common Stock is so traded, but not so quoted,
the average of the closing reported bid and asked prices of the Common Stock as
reported by NASDAQ or any comparable system or, if the Common Stock is not
listed on NASDAQ or any comparable system, the average of the closing bid and
asked prices as furnished by two members of the National Association of
Securities Dealers, Inc. selected from time to time by the Corporation for that
purpose. If the Common Stock is not traded in such manner that the quotations
referred to above are available for the period required hereunder, Current
Market Price per share of Common Stock shall be deemed to be the fair value as
determined by the Board of Directors, irrespective of any accounting treatment.
(g) Statement Regarding Adjustments. Whenever the Conversion Price shall be
adjusted as provided in subparagraph 5(e), the Corporation shall forthwith file,
at the office of any transfer agent for the Series E Preferred Stock and at the
principal office of the
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Corporation, a statement showing in detail the facts requiring such adjustment
and the Conversion Price that shall be in effect after such adjustment, and the
Corporation shall also cause a copy of such statement to be sent by mail, first
class postage prepaid, to each holder of shares of Series E Preferred Stock at
its address appearing on the Corporation's records. Each such statement shall be
signed by the Corporation's independent public accountants, if applicable. Where
appropriate, such copy may be given in advance and may be included as part of a
notice required to be mailed under the provisions of subparagraph 5(h).
(h) Notice to Holders. In the event the Corporation shall propose to take
any action of the type described in clause (i), (ii) or (iii) of subparagraph
5(e), the Corporation shall give notice to each holder of shares of Series E
Preferred Stock, in the manner set forth in subparagraph 5(g), which notice
shall specify the record date, if any, with respect to any such action and the
approximate date on which such action is to take place. Such notice shall also
set forth such facts with respect thereto as shall be reasonably necessary to
indicate the effect of such action (to the extent such effect may be known at
the date of such notice) on the Conversion Price and the number, kind or class
of shares or other securities or property which shall be deliverable upon
conversion of shares of Series E Preferred Stock. In the case of any action
which would require the fixing of a record date, such notice shall be given at
least 10 days prior to the date so fixed, and in case of all other action, such
notice shall be given at least 15 days prior to the taking of such proposed
action. Failure to give such notice, or any defect therein, shall not affect the
legality or validity of any such action.
(i) Treasury Stock. For the purposes of this paragraph 5, the sale or other
disposition of any Common Stock, theretofore held in the Corporation's treasury
shall be deemed to be an issue thereof.
(j) Costs. The Corporation shall pay all documentary, stamp, transfer or
other transactional taxes attributable to the issuance or delivery of shares of
Common Stock upon conversion of any shares of Series E Preferred Stock; provided
that the Corporation shall not be required to pay any taxes which may be payable
in respect of any transfer involved in the issuance or delivery of any
certificate for such shares in a name other than that of the holder of the
shares of Series E Preferred Stock in respect of which such shares are being
issued.
(k) Reservation of Shares. The Corporation shall reserve at all times so
long as any shares of Series E Preferred Stock remain outstanding, free from
preemptive rights, out of its treasury stock (if applicable) or its authorized
but unissued shares of Common Stock, or both, solely for the purpose of
effecting the conversion of the shares of Series E Preferred Stock, sufficient
shares of Common Stock to provide for the conversion of all outstanding shares
of Series E Preferred Stock.
(l) Valid Issuance. All shares of Common Stock which may be issued upon
conversion of the shares of Series E Preferred Stock will upon issuance by the
Corporation be duly and validly issued, fully paid and nonassessable and free
from all taxes, liens and charges with respect to the issuance thereof, and the
Corporation shall take no action which will cause a contrary result (including,
without limitation, any action which would cause the Conversion Price to be less
than the par value, if any, of the Common Stock).
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6. Voting Rights.
(a) In addition to any other rights provided in the Corporation's Bylaws or
by law, each share of Series E Preferred Stock shall entitle the holder thereof
to such number of votes per share as shall equal the whole number of shares of
Common stock into which each share of Series E Preferred Stock is then
convertible, and each share of Series E Preferred Stock shall be entitled to
vote on all matters as to which holders of Common stock shall be entitled to
vote, in the same manner and with the same effect as such holders of Common
Stock, voting together with the holders of Common Stock as one class.
(b) At any time while a minimum of fifty percent (50%) of the shares of
Series E Preferred Stock remain outstanding, the Corporation shall not, without
the affirmative consent or approval of the holders of shares representing at
least a majority of the voting power of the Series E Preferred Stock then
outstanding, acting separately as one class, take any action to cause any
amendment, alteration or repeal of its Certificate of Incorporation or Bylaws,
or file a Certificate of Designation with respect to creating a new series of
Preferred Stock if such action would alter adversely or change the preference
rights, privileges or powers of, or the restrictions provided for the benefit of
the Series E Preferred Stock or increase or decrease the number of shares of
Series E Preferred Stock authorized hereby; provided, however, that the issuance
of additional classes or series of Junior Stock or Parity Stock, or an increase
in the authorized amount of Preferred Stock or any other class or series of
Junior Stock or Parity Stock shall not require the approval or consent of the
holders of the Series E Preferred Stock.
7. Exclusion of Other Rights.
Except as may otherwise be required by law, the shares of Series E
Preferred Stock shall not have any preferences or relative, participating,
optional or other special rights, other than those specifically set forth in
this resolution (as such resolution may be amended from time to time) and in the
Corporation's Certificate of Incorporation. The shares of Series E Preferred
Stock shall have no preemptive or subscription rights.
8. Headings of Subdivisions.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
9. Severability of Provisions.
If any right, preference or limitation of the Series E Preferred Stock set
forth in this resolution (as such resolution may be amended from time to time)
is invalid, unlawful or incapable of being enforced by reason of any rule of law
or public policy, all other rights, preferences and limitations set forth in
this resolution (as so amended) which can be given effect without the invalid,
unlawful or unenforceable right, preference or limitation shall, nevertheless,
remain in full force and effect, and no right, preference or limitation herein
set forth shall be deemed dependent upon any other such right, preference or
limitation unless so expressed herein.
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<PAGE> 100
10. Status of Reacquired Shares.
Shares of Series E Preferred Stock which have been issued and reacquired in
any manner shall (upon compliance with any applicable provisions of the laws of
the State of Delaware) have the status of authorized and unissued shares of
Preferred Stock issuable in series undesignated as to series and may be
redesignated and reissued.
IN WITNESS WHEREOF, this Certificate has been duly executed by the
undersigned Chairman of the Board and Secretary of the Corporation this 29th day
of June, 1994.
HARCOR ENERGY, INC.
By: /s/ MARK G. HARRINGTON
-----------------------------
Mark G. Harrington
Chairman of the Board
ATTEST:
/s/ GARY S. PECK
- --------------------------------
Gary S. Peck
Secretary
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<PAGE> 101
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "HARCOR ENERGY, INC.", FILED IN THIS OFFICE ON THE FIRST DAY OF
AUGUST, A.D. 1995, AT 11 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
<TABLE>
<S> <C> <C>
2126867 8100 [SEAL] /s/ EDWARD J. FREEL
950172634 -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7592858
DATE: 08-01-95
</TABLE>
<PAGE> 102
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND
RIGHTS OF SERIES F CONVERTIBLE PREFERRED STOCK
PURSUANT TO SECTION 151 OF THE
DELAWARE GENERAL CORPORATION LAW
The undersigned Chairman of the Board and Secretary, respectively, of
HarCor Energy, Inc., a Delaware corporation (the "Corporation"), certify that
pursuant to authority granted to and vested in the Board of Directors of the
Corporation by the provisions of the Certificate of Incorporation and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, its Board of Directors has duly adopted the following
resolutions creating the Series F Convertible Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation by Article IV of the Corporation's Certificate of
Incorporation, a series of preferred stock of the Corporation be, and it hereby
is, created out of the authorized but unissued shares of the capital stock of
the Corporation, such series to be designated Series F Convertible Preferred
Stock (the "Series F Preferred Stock"), to consist of 200,000 shares, par value
$.01 per share, of which the preferences and relative and other rights, and the
qualifications, limitations or restrictions thereof, shall be (in addition to
those set forth in the Corporation's Certificate of Incorporation) as follows:
1. Certain Definitions.
Unless the context otherwise requires, the terms defined in this paragraph
1 shall have, for all purposes of this resolution, the meanings herein
specified.
Common Stock. The term "Common Stock" shall mean the Common Stock of the
Corporation as in effect on the Issue Date or as in effect after giving effect
to any merger, consolidation or similar transaction involving the Corporation,
or any combination, subdivision, recapitalization, reclassification or similar
transaction involving Common Stock.
Conversion Date. The term "Conversion Date" shall have the meaning set
forth in paragraph 4(b) below.
<PAGE> 103
Issue Date. The term "Issue Date" shall mean the date that shares of Series
F Preferred Stock are first issued by the Corporation.
Junior Stock. The term "Junior Stock" shall mean, for purposes of Section 3
below, the Common Stock and any other class or series of stock of the
Corporation issued after the Issue Date not entitled to receive any assets upon
the liquidation, dissolution or winding up of the affairs of the Corporation
until the Series F Preferred Stock shall have received the entire Preference
Amount.
Majority Approval. The term "Majority Approval" shall have the meaning set
forth in paragraph 5 below.
Notice. The term "Notice" shall have the meaning set forth in paragraph
4(b) below.
Preference Amount. The term "Preference Amount" shall have the meaning set
forth in Section 4 below.
Record Date. The term "Record Date" shall have the meaning set forth in
paragraph 3(c) below.
Senior Stock. The term "Senior Stock" shall mean, for purposes of Section 3
below, any class or series of stock of the Corporation issued after the Issue
Date ranking senior to the Series F Preferred Stock in respect of the right to
receive assets upon the liquidation, dissolution or winding up of the affairs of
the Corporation.
Subsidiary. The term "Subsidiary" shall mean any corporation of which
shares of stock possessing at least a majority of the general voting power in
electing the board of directors are, at the time as of which any determination
is being made, owned by the Corporation, whether directly or indirectly through
one or more Subsidiaries.
2. Dividends
(a) To the extent the Board of Directors declares any dividends on the
Common Stock in additional shares of Common Stock, holders of the Series F
Preferred Stock shall be entitled to receive, and the Board of Directors shall
declare as a dividend, an equivalent number of additional shares of Series F
Preferred Stock per each share of Series F Preferred Stock. No such Common Stock
dividends may be declared or paid
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<PAGE> 104
on the Common Stock unless a sufficient number of shares of Series F Preferred
Stock are available for declaration and payment on the Series F Preferred Stock
then outstanding. At the time of distribution, all such additional shares of
Series F Preferred Stock will be duly and validly issued, fully paid and
non-assessable and free from all taxes, liens and changes with respect to the
issuance thereof, and the Corporation shall take no action which will cause a
contrary result.
(b) In all other events, the holders of the Series F Preferred Stock shall
be entitled to receive per each share of Series F Preferred Stock an equivalent
amount of dividends to those dividends declared on each share of Common Stock,
in each case, when, as and if declared thereon by the Board of Directors out of
funds, property or assets legally available therefor.
(c) All dividends declared and paid on the Series F Preferred Stock in
accordance with paragraphs 2(a) and 2(b) above, shall be declared and paid at
the same time and in the same manner as the dividends paid on the Common Stock.
Dividends paid pursuant to this Section 4 shall be paid to the holders of record
of the Series F Preferred Stock as their names appear on the share register of
the Corporation on the corresponding record date (the "Record Date"). The Record
Date shall be the same date as the record date set by the Board of Directors for
the payment of the equivalent dividends on the Common Stock.
3. Distribution Upon Liquidation, Dissolution or Winding Up.
In the event of any voluntary or involuntary liquidation, dissolution or
other winding up of the affairs of the Corporation, subject to the prior
preferences and other rights of any Senior Stock, but before any distribution or
payment shall be made to the holders of Junior Stock, the holders of the Series
F Preferred Stock shall be entitled to be paid $.01 per share (the "Preference
Amount"), in cash or in property taken at its fair value as determined by the
Board of Directors, or both, as the election of the Board of Directors. After
payment of the Preference Amount, holders of the Series F Preferred Stock and
the holders of the Common Stock will share ratably on a per share basis in any
distribution or payment. Neither the consolidation or merger of the Corporation
into or with another corporation or corporations, nor the sale of all or
substantially all of the assets of the Corporation to another corporation or
corporations shall be deemed a
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<PAGE> 105
liquidation, dissolution or winding up of the affairs of the Corporation within
the meaning of this Section 3.
4. Conversion Rights.
The Series F Preferred Stock shall be convertible into Common Stock as
follows:
(a) Optional Conversion. Each outstanding share of Series F Preferred
Stock may be converted at any time or from time to time at the option of
the holder thereof, without any further act of the Corporation or its
stockholders, into one fully paid and nonassessable share of Common Stock.
Notwithstanding any right of conversion of Series F Preferred Stock
provided for above, unless otherwise permitted by applicable law or
regulation, no such shares of Series F Preferred Stock originally issued by
the Corporation to a bank holding company or an affiliate of a bank holding
company (or issued upon exercise of warrants originally issued by the
Corporation to a bank holding company or an affiliate of a bank holding
company) may be converted into shares of Common Stock by the original
holder or any direct or indirect transferee thereof such that immediately
after such conversion such person and its affiliates (which term, for
avoidance of doubt, includes such bank holding company, any such transferee
and their respective affiliates) would own more than 4.9% of any class of
voting securities of the Corporation unless such shares are being
distributed, disposed of or sold in any one of the following transactions:
(a) such shares are being sold in a public offering of such shares
registered under the Securities Act of 1933 or a public sale pursuant to
Rule 144 of the Securities and Exchange Commission or any similar rule
then in force;
(b) such shares are being sold (including by virtue of a merger,
consolidation or similar transaction involving the Corporation) to a
person or group of persons (with the meaning of the Securities Exchange
Act of 1934) if, after such sale, such person or group or persons in the
aggregate would own or control securities of the Corporation which
possess
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<PAGE> 106
in the aggregate the ordinary voting power to elect a majority of the
Corporation's directors;
(c) such shares are being sold to a person or group of persons
(within the meaning of the Securities Exchange Act of 1934) if, after
such sale, such person or group of persons in the aggregate would not
own, control or have the right to acquire more than two percent of the
outstanding securities of any class of voting securities of the
Corporation, or
(d) such shares are being sold in any other manner permitted by the
Federal Reserve Board.
For purposes of this paragraph 4(a), "persons" shall include any
natural person and any corporation, partnership, joint venture, trust,
unincorporated organization and any other entity or organization and
percentages of the Corporations' outstanding voting securities shall
include shares issuable upon exercise or conversion of Series F Preferred
Stock and other convertible securities, options, warrants or other similar
instruments owned by such bank holding company, its transferees and their
respective affiliates, but shall not include shares issuable upon exercise
or conversion of convertible securities, options, warrants or other similar
instruments owned by any other person.
(b) Mechanics of Conversion. Shares of Series F Preferred Stock may be
converted by written notice (the "Notice") from the holders of such shares
to the Corporation which Notice need not include the certificates
representing such shares; provided that the Corporation shall not be
obligated to issue to any such holder certificates evidencing the shares of
Common Stock issuable upon such conversion unless certificates evidencing
the shares of Series F Preferred Stock are either delivered to the
Corporation or any transfer agent of the Corporation. Conversion shall be
deemed to have been effected on the date of the giving of the Notice to the
Corporation or, if certificates for the Series F Preferred Stock to be
converted shall not have been delivered with the Notice, on such later date
as the certificates shall have been delivered to the Corporation, and such
date is referred to herein as the "Conversion Date." The person in whose
name the certificate or certificates for Common Stock are to be issued
shall be deemed to have become a holder of record of such
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<PAGE> 107
Common Stock on the applicable Conversion Date. As promptly as practicable
thereafter (and after surrender of the certificate or certificates
representing shares of Series F Preferred Stock to the Corporation or any
transfer agent of the Corporation) the Corporation shall issue and deliver
to such holder a certificate or certificates for the number of full shares
of Common Stock to which such holder is entitled and a check or cash with
respect to any fractional interest in a share of Common Stock as provided
in paragraph 4(c).
(c) Fractional Shares. No fractional shares of Common Stock or scrip
shall be issued upon conversion of shares of Series F Preferred Stock. If
more than one share of Series F Preferred Stock shall be surrendered for
conversion at any one time by the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the
basis of the aggregate number of shares of Series F Preferred Stock so
surrendered. Instead of any fractional shares of Common Stock which would
otherwise be issuable upon conversion of any shares of Series F Preferred
Stock, the Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to that fractional interest of the
then Current Market Price. The Current Market Price at any date shall mean,
in the event the Common Stock is publicly traded, the average of the daily
closing prices per share of Common Stock for 30 consecutive trading days
ending no more than 15 business days before such date (as adjusted for any
stock dividend, split, combination or reclassification that took effect
during such 30 business day period). The closing price for each day shall
be the last reported sale price regular way or, in case no such reported
sale takes place on such day, the average of the last closing bid and asked
prices regular way, in either case on the principal national securities
exchange on which the Common Stock is listed or admitted to trading, or if
not listed or admitted to trading on any national securities exchange, the
closing sale price for such day reported by NASDAQ, if the Common Stock is
traded over-the-counter and quoted in the NASDAQ National Market, or if the
Common Stock is so traded, but not so quoted, the average of the closing
reported bid and asked prices of the Common Stock as reported by NASDAQ or
any comparable system or, if the Common Stock is not listed on NASDAQ or
any comparable system, the average of the closing bid and asked prices as
furnished by two members of the National
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<PAGE> 108
Association of Securities Dealers, Inc. selected from time to time by the
Corporation for that purpose. If the Common Stock is not traded in such
manner that the quotations referred to above are available for the period
required hereunder, Current Market Price per share of Common Stock shall be
deemed to be the fair value as determined by the Board of Directors,
irrespective of any accounting treatment.
(d) Stock Dividends, Subdivisions, Reclassifications or Combinations.
If the Corporation shall (1) subdivide or reclassify the outstanding shares
of Common Stock into a greater number of shares, or (2) combine or
reclassify the outstanding Common Stock into a smaller number of shares,
the number of shares of Series F Preferred Stock shall be subdivided,
combined or reclassified at the effective date of the Common Stock's
subdivision, combination or reclassification so that the holder of any
shares of Series F Preferred Stock surrendered for conversion after such
date shall be entitled to receive the number of shares of Common Stock
which he would have owned or been entitled to receive had such Series F
Preferred Stock been converted immediately prior to such date. Successive
adjustments shall be made whenever any event specified above shall occur.
The Common Stock shall not be subdivided, combined or reclassified unless
there are sufficient shares of Series F Preferred Stock available for the
adjustment required pursuant to this paragraph 4(d).
(e) Statement Regarding Adjustments. Whenever the provisions of
paragraph 4(d) apply, the Corporation shall forthwith file, at the office
of any transfer agent for the Series F Preferred Stock and at the principal
office of the Corporation, a statement showing in detail the facts
requiring such adjustment, and the Corporation shall also cause a copy of
such statement to be sent by mail, first class postage prepaid, to each
holder of shares of Series F Preferred Stock at its address appearing on
the Corporation's records.
(f) Treasury Stock. For the purposes of this Section 4, the sale or
other disposition of any Common Stock theretofore held in the Corporation's
treasury shall be deemed to be an issue thereof.
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<PAGE> 1
EXHIBIT 3.2
As Amended
BY-LAWS
OF
HARCOR ENERGY, INC.
ARTICLE I
OFFICES
SECTION 1. The registered office shall be in the City of Dover, County of
Kent, State of Delaware.
SECTION 2. 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 1. All meetings of the stockholders shall be held in the City of
Torrance, California, at such place as may be fixed from time to time by the
Board of Directors, or at such other place either within or without the State of
Delaware as the Board of Directors may determine and which are stated in the
notice of the meeting.
SECTION 2. The annual meeting of stockholders shall be held each year on a
date and time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
SECTION 3. A majority of the stock issued and outstanding and entitled to
vote at any meeting of stockholders, the holders of which are present in person
or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-laws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting stock represented in person or by proxy
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. 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 noticed. If the adjournment is for more than 30 days, or if after the
<PAGE> 2
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 thereat.
SECTION 4. When a quorum is present at any meeting, the vote of the holders
of a majority of the 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, or the
Certificate of Incorporation, or these By-laws, a different vote is required in
which case such express provision shall govern and control the decision of such
question.
SECTION 5. At each meeting of the stockholders, each stockholder having the
right to vote may vote in person or may authorize another person or persons to
act for him by proxy appointed by an instrument in writing subscribed by such
stockholder and bearing a date not more than three years prior to said meeting,
unless said instrument provides for a longer period. All proxies must be filed
with the Secretary of the Corporation at the beginning of each meeting in order
to be counted in any vote at the meeting. Each stockholder shall have one vote
for each share of stock having voting power, registered in his name on the books
of the Corporation on the record date set by the Board of Directors as provided
in Article V, section 6 hereof. All elections shall be had and all questions
decided by a plurality vote.
SECTION 6. 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 President and shall be called by the
President or the Secretary at the request in writing of, or a resolution adopted
by, a majority of members of the Board of Directors. Special meetings of the
stockholders may not be called by any other person or persons. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
SECTION 7. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which notice
shall state the place, date and hour of the meeting, and, in the case of a
special meeting, the purpose or purposes for which the meeting is called. The
written notice of any meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
SECTION 8. The officer or agent who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the
2
<PAGE> 3
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 ten 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 of the meeting, 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.
SECTION 9. Unless otherwise provided in the Certificate of Incorporation,
any action required to be taken at any annual or special meeting of stockholders
of the Corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
SECTION 1. The number of directors constituting the entire Board shall be
not less than six nor more than twelve as fixed from time to time by vote of a
majority of the entire Board, provided, however, that the number of directors
shall not be reduced so as to shorten the term of any director at the time in
office, and provided further, that the number of directors constituting the
entire Board shall be six until otherwise fixed by a majority of the entire
Board.
SECTION 2. The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors constituting the
entire Board permits with the term of office of one class expiring each year. At
the annual meeting of stockholders in 1988 directors of the first class shall be
elected to hold office for a term expiring at the next succeeding annual
meeting, directors of the second class shall be elected to hold office for a
term expiring at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. At each annual election of directors held after 1988,
the directors chosen to succeed those whose terms then expire shall be
identified as being of the same class as the directors they succeed and shall be
elected for a term expiring at the third succeeding annual election of directors
by the stockholders. Any
3
<PAGE> 4
vacancies in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the Board of Directors, may be
filled by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall hold
office until the next election of the class for which such directors shall have
been chosen and until their successors shall be elected and have qualified. Any
director or the entire Board of Directors may be removed at any time, but only
for cause, from the Board of Directors by the affirmative vote of the holders of
a majority of the shares then entitled to vote at any meeting of stockholders
held for the purpose of electing directors or by the written consent of such
number of holders. No decrease in the number of directors shall shorten the term
of any incumbent director.
SECTION 3. The property and business of the Corporation shall be managed by
or under the direction of its Board of Directors. In addition to the powers and
authorities by these By-laws expressly conferred upon them, the Board 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
By-laws directed or required to be exercised or done by the Stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 4. The directors may hold their meetings and have one or more
offices, and keep the books of the Corporation outside of the State of Delaware.
SECTION 5. Regular meetings of the Board of Directors may be held without
notice at such time and place as shall from time to time be determined by the
Board. Except as otherwise provided by statute, any business may be transacted
at any regular meeting of the Board of Directors.
SECTION 6. Special meetings of the Board of Directors may be called by the
President on forty-eight hours' notice to each director, either personally or my
mail or by telegram; special meetings shall be called by the President or the
Secretary in like manner and on like notice on the written request of two
directors unless the Board consists of only one director; in which case special
meetings shall be called by the President or Secretary in like manner or on like
notice on the written request of the sole director.
SECTION 7. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the vote 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
4
<PAGE> 5
provided by statute, by the Certificate of Incorporation or by these By-laws. 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, until a
quorum shall be present. If only one director is authorized, such sole director
shall constitute a quorum.
SECTION 8. Unless otherwise restricted by the Certificate of Incorporation
or these By-laws, any action required or permitted to be taken at any meeting of
the Board of Directors or of any Committee thereof may be taken without a
meeting, if all members of the Board or Committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or Committee.
SECTION 9. Unless otherwise restricted by the Certificate of Incorporation
or these By-laws, members of the Boards of Directors, or any Committee
designated by the Board of Directors, may participate in a meeting of the Board
of Directors, or any Committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
SECTION 10. Notwithstanding any other provisions of the Bylaws of the
Corporation (and notwithstanding the fact that some lesser percentage may be
specified by law or the Bylaws of the Corporation), the affirmative vote of the
holders of 66 2/3% or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (considered
for this purpose as one class) shall be required to amend, alter, change or
repeal Sections 1 and 2 and this Section 10 of this Article III of these Bylaws.
5
<PAGE> 6
COMMITTEES AND DIRECTORS
SECTION 11. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more Committees, each such Committee to
consist of one or more of the directors of the Corporation. The Board 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. In
the absence or disqualification of a member of a Committee, 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. Any such Committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers
and authority 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; but no such Committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
By-laws of the Corporation; and, unless the resolution or the Certificate of
Incorporation
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<PAGE> 7
expressly so provide, no such Committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
SECTION 12. Each Committee shall keep regular minutes of its meetings and
report the same of the Board of Directors when required.
COMPENSATION OF DIRECTORS
SECTION 13. Unless otherwise restricted by the Certificate of Incorporation
or these By-laws, the Board of Directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing Committees may be allowed like compensation for attending
Committee meetings.
INDEMNIFICATION
SECTION 14(a). 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 (a "proceeding"), by reason of
the fact that he, or a person of whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation (including any
controlling shareholder of the Corporation acting as an 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, 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 or other provisions of Delaware law (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 expenses,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties, amounts paid or to be paid in settlement and amounts
expended in seeking indemnification granted to such person under applicable law,
this By-law or any agreement with the Corporation) reasonably incurred or
suffered
7
<PAGE> 8
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
(including any controlling shareholder of the Corporation acting as an agent of
the Corporation), and shall inure to the benefit of his heirs, executors and
administrators; provided, however, that, except as provided in paragraph (b) of
this Section, the Corporation shall indemnify any person seeking indemnity in
connection with an action, suit or proceeding (or part thereof) initiated by
such person only if such action, suit or proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 14 shall be a contract right. Further,
the right to indemnification conferred in this Section 14 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
Delaware General Corporation Law requires of any class of persons entitled to
advancement of expenses, the payment of such expenses incurred by a director,
officer, employee or agent, including any controlling stockholder of the
corporation acting as an agent of the corporation, in his or her capacity as a
director, officer, employee or agent 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 person, to repay all amounts so advanced if
it shall ultimately be determined that such director, officer, employee or
agent, including any controlling stockholder of the Corporation acting as an
agent of the Corporation, is not entitled to be indemnified under this Section
14 or otherwise; and provided further, that no advancement of expenses shall be
made if the Board of Directors has made a determination that the advancement of
expenses is not proper in the circumstances because such person has not met the
applicable standard of conduct set forth in the Delaware General Corporation
Law.
(b) If a claim under paragraph (a) is not paid in full by the Corporation
within sixty 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 such suit is 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 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 has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including
8
<PAGE> 9
its Board of Directors, independent legal counsel, or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that claimant has not met the applicable
standard of conduct.
(c) The rights conferred on any person in paragraphs (a) and (b) shall not
be exclusive of any right which such persons may have or hereafter acquire under
any statute, provision or the Certificate of Incorporation, By-law, agreement,
vote of stockholders or disinterested directors or otherwise.
(d) The Board of Directors is authorized to enter into a contract with any
director, officer, employee or agent of the Corporation, or any person serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
including employee benefit plans, providing for indemnification rights
equivalent to or, if the Board of Directors so determines, greater than, those
provided for in this Section 13.
(e) The Board of Directors may authorize, by a vote of a majority of a
quorum of the Board of Directors, the Corporation to purchase and maintain
insurance to the extent reasonably available, at its expense, to protect itself
and any such director, officer, employee or agent of the Corporation or any
director, officer, employe or agent of the Corporation 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 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.
(f) Any amendment, repeal or modification of any provision of this Section
14 by the stockholders and the directors of the Corporation shall not adversely
affect any right or protection of a director or officer of the Corporation
existing at the time of such amendment, repeal or modification.
ARTICLE IV
OFFICERS
SECTION 1. The officers of this Corporation shall be chosen by the Board of
Directors and shall include a President, a Secretary, and a Chief Financial
Officer. The Corporation may also have at the discretion of the Board of
Directors such other officers as are desired, including a Chairman of the Board,
one or more Vice Presidents, one or more Assistant Secretaries and Assistant
Treasurers, and such other officers as may be appointed
9
<PAGE> 10
in accordance with the provisions of Section 3 hereof. Any number of offices may
be held by the same person, unless the Certificate of Incorporation or these
By-laws otherwise provide.
SECTION 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the Corporation.
SECTION 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board.
SECTION 4. The salaries of all officers and agents of the Corporation shall
be fixed by the Board of Directors.
SECTION 5. The officers of the Corporation shall hold office until their
successors are chosen and qualify in their stead. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
CHAIRMAN OF THE BOARD
SECTION 6. The Chairman of the Board, if such an officer be elected, shall,
if present, preside at all meetings of the Board of Directors and exercise and
perform such other powers and duties as may be from time to time assigned to him
by the Board of Directors or prescribed by these By-laws. If there is no
President, the Chairman of the Board shall in addition be the Chief Executive
Officer of the Corporation and shall have the powers and duties prescribed in
Section 7 of this Article IV.
PRESIDENT
SECTION 7. Subject to such supervisory powers, if any, as may be given by
the Board of Directors to the Chairman of the Board, if there be such an
officer, the President shall be the Chief Executive Officer of the Corporation
and shall, subject to the control of the Board of Directors, have general
supervision, direction and control of the business and officers of the
Corporation. He shall preside at all meetings of the stockholders and, in the
absence of the Chairman of the Board, or if there be none, at all meetings of
the Board of Directors. He shall have the general powers and duties of
management usually vested
10
<PAGE> 11
in the office of president and chief executive officer of a corporation, and
shall have such other powers and duties as may be prescribed by the Board of
Directors or these By-laws.
VICE PRESIDENTS
SECTION 8. In the absence or disability of the President, the Vice
Presidents in order of their rank as fixed by the Board of Directors, or if not
ranked, the Vice President designated by the Board of Directors, shall perform
all the duties of the President, and when so acting shall have all the powers of
and be subject to all the restrictions upon the President. The Vice Presidents
shall have such other duties as from time to time may be prescribed for them,
respectively, by the Board of Directors.
SECRETARY AND ASSISTANT SECRETARY
SECTION 9. The Secretary shall attend all sessions of the Board of
Directors and all meetings of the stockholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose; and shall
perform like duties for the standing Committees when required by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-laws. He shall keep
in safe custody the seal of the Corporation if one be adopted, and when
authorized by the Board of Directors, affix the same to any instrument requiring
it, and when so affixed it shall be attested by his signature or by the
signature of an Assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to
attest the affixing by his signature.
CHIEF FINANCIAL OFFICER
SECTION 10. The Chief Financial Officer shall keep and maintain, or cause
to be kept and maintained, adequate and correct books and records of accounts of
the properties and business transactions of the Corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings, and shares. The books of account shall at all reasonable
times be open to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other valuables in
the name and to the credit of the Corporation with such depositaries as may be
designated by the Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, shall render to the
President and directors, whenever they request it, an account of all
11
<PAGE> 12
his transactions as Chief Financial Officer and of the financial condition of
the Corporation, and shall have other powers and perform such other duties as
may be prescribed by the Board of Directors or these By-laws.
OFFICER LOANS AND GUARANTIES
SECTION 11. The Corporation may make loans of money or property to, or
guarantee the obligation of, any officer of the Corporation or its parent or
subsidiary, whether or not the officer is a director, or adopt an employee
benefit plan or plans authorizing such loans or guaranties, upon the approval of
the Board of Directors, by a vote sufficient without counting the vote of any
interested director or directors, if the Board of Directors determines that such
a loan or guaranty or plan may reasonably be expected to benefit the
Corporation.
ARTICLE V
CERTIFICATES OF STOCK
SECTION 1. Every holder of stock of the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by, the Chairman
or Vice Chairman of the Board of Directors, or the President or a Vice
President, and by the Chief Financial Officer or an Assistant Treasurer or
Secretary or an Assistant Secretary of the Corporation, certifying the number of
shares represented by the certificate owned by such stockholder in the
Corporation.
SECTION 2. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent, or registrar at the date of issue.
SECTION 3. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or 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 or series of stock, provided that, except as
otherwise provided in section 202 of the General Corporation Law of Delaware, 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
12
<PAGE> 13
represent such class or series of stock, a statement that the Corporation will
furnish without charge to each stockholder who requests the powers,
designations, preferences and relative, participating, optional or other special
rights of each class or stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
LOST, STOLEN OR DESTROYED CERTIFICATES
SECTION 4. 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 of the issuance thereof, require 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
and/or 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 alleged to have been lost, stolen or destroyed.
TRANSFERS OF STOCK
SECTION 5. Upon surrender to the Corporation, or the transfer agent of the
Corporation, of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the Corporation to issue or cause to be issued a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction
upon its books.
FIXING RECORD DATE
SECTION 6. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders, or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting
13
<PAGE> 14
of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
SECTION 7. The Corporation shall be entitled to treat the holder of record
of any share or shares of stock as the holder in fact thereof and accordingly
shall not be bound to recognize any equitable or other claim or interest in such
share on the part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by the laws of the State of
Delaware.
ARTICLE VI
GENERAL PROVISIONS
DIVIDENDS
SECTION 1. Dividends upon the capital stock of the Corporation, 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 law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation.
SECTION 2. 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
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for repairing or maintaining any property
of the Corporation, or for equalizing dividends, or for such other purpose as
the directors shall think conducive to the interests of the Corporation, and the
directors may abolish any such reserve.
CHECKS
SECTION 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
FISCAL YEAR
SECTION 4. The fiscal year of the Corporation shall be fixed by resolution
of the Board of Directors.
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<PAGE> 15
SEAL
SECTION 5. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware." Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
NOTICES
SECTION 6. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-laws, notice is required to be given
to any director or stockholder, it shall not be construed to require personal
notice, and such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given two days after the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
SECTION 7. Whenever any notice is required to be given under the provisions
of the statutes or of the Certificate of Incorporation or of these By-laws, 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.
ANNUAL STATEMENT
SECTION 8. The Board of Directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
ARTICLE VII
AMENDMENTS
SECTION 1. These By-laws may be altered, amended or repealed or new By-laws
may be adopted by the stockholders or by the Board of Directors, when such power
is conferred upon the Board of Directors by the Certificate of Incorporation, at
any regular meeting of the stockholders or of the Board of Directors or at any
special meeting of the stockholders or of the Board of Directors if notice of
such alteration, amendment, repeal or adoption of new By-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
By-laws
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<PAGE> 16
is conferred upon the Board of Directors by the Certificate of Incorporation it
shall not divest or limit the power of the stockholders to adopt, amend or
repeal By-laws.
16
<PAGE> 1
EXHIBIT 3.3
[SEAL]
THE STATE OF TEXAS
SECRETARY OF STATE
The undersigned, as Secretary of State of the State of Texas, HEREBY
CERTIFIES that the attached is a true and correct copy of the following
described instruments on file in this office:
WARRIOR, INC.
ARTICLES OF INCORPORATION OCTOBER 5, 1976
CHANGE OF REGISTERED OFFICE AND/OR AGENT MARCH 1, 1982
CHANGE OF REGISTERED OFFICE AND/OR AGENT JANUARY 6, 1985
CHANGE OF REGISTERED OFFICE AND/OR AGENT JULY 13, 1990
IN TESTIMONY WHEREOF, I have
hereunto signed my name officially
and caused to be impressed hereon
the Seal of State at my office in
the City of Austin, on July 13,
1995.
[SEAL]
/s/ ANTONIO O. GARZA, JR.
------------------------------------
Antonio O. Garza, Jr. DEM
Secretary of State
<PAGE> 2
ARTICLES OF INCORPORATION
OF
WARRIOR, INC.
We, the undersigned, natural persons of the age of twenty-one (21) years or
more, at least two of whom are citizens of the State of Texas, acting as
incorporators of a corporation under the Texas Business Corporation Act, do
hereby adopt the following Articles of Incorporation for such corporation.
ARTICLE ONE
The name of the corporation is WARRIOR, INC.
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The purpose or purposes for which this corporation is organized are:
To engage in the business of buying, otherwise acquiring, selling, and
otherwise disposing of hydrocarbons, and the prospecting, drilling,
pumping, piping, storing, refining and selling, both at wholesale and
retail of oil, gas or other hydrocarbons, and to do all such things as may
be necessary or desirable in carrying out any and all lawful business for
which corporations may be incorporated under the Texas Business Corporation
Act.
ARTICLE FOUR
The aggregate number of shares which the corporation shall have authority
to issue is Two Hundred Thousand (200,000) shares of common stock each with a
par value of One Dollar ($1.00). Common shares and the holders thereof shall not
have cumulative voting rights, and no shareholder shall have any pre-emptive
rights to subscribe for or acquire any treasury shares or any additional shares
of any class of the corporation if such shares shall be hereby or hereafter
authorized or issued.
ARTICLE FIVE
The corporation will not commence business until it has received for the
issuance of its shares consideration of the value
<PAGE> 3
of One Thousand Dollars ($1,000.00), consisting of money, labor done or property
actually received, which sum is not less than One Thousand Dollars ($1,000.00).
ARTICLE SIX
The post office address of its initial registered office is 1003 West
Murphy, P.O. Box 4188, Odessa, Texas 79760, and the name of its initial
registered agent at such address is J. D. Chandler.
ARTICLE SEVEN
No contract or other transaction between the corporation and any other
corporation and no other act of the corporation with relation to any other
corporation shall, in the absence of fraud, in any way be invalidated or
otherwise affected by the fact that any one or more of the directors of the
corporation are pecuniarily or otherwise interested in, or are directors or
officers of, such other corporation. Any director of the corporation may vote
upon any contract or other transaction between the corporation and any
subsidiary or affiliated corporation without regard to the fact that he is also
a director of such subsidiary or affiliated corporation. Any director of the
corporation individually, or any firm or association of which any director may
be a member, may be a party to, or may be pecuniarily or otherwise interested
in, any contract or transaction of the corporation, provided that the fact that
he individually or as a member of such firm or association is such a party or so
interested shall be disclosed or shall have been known to the Board of Directors
or a majority of such members thereof as shall be present at any meeting of the
Board of Directors at which action upon any such contract or transaction shall
be taken; and in any case described in this paragraph, any such director may be
counted in determining the existence of a quorum at any meeting of the Board of
Directors which shall authorized any such contract or transaction and may vote
thereat to authorize any such contract or transaction.
-2-
<PAGE> 4
ARTICLE EIGHT
(a) Every director, officer, or employee of the corporation shall be
indemnified by the corporation against all expenses and liabilities, including
counsel fees, reasonably incurred by or imposed upon him in connection with any
proceeding to which he may be made a party, or in which he may become involved,
by reason of his being or having been a director, officer, or employee of the
corporation, or any settlement thereof, whether or not he is a director,
officer, or employee at the time such expenses are incurred, except in such
cases wherein the director, officer, or employee is adjudged guilty of willful
misfeasance or malfeasance in the performance of his duties; provided that in
the event of a settlement the indemnification herein shall apply only when the
Board of Directors approves such settlement and reimbursement as being for the
best interests of the corporation. The foregoing right of indemnification shall
be in addition to and not exclusive of all other rights to which such director,
officer, or employee may be entitled.
(b) The corporation shall have the power to purchase and maintain insurance
on behalf of any person who is or was a directors, 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 any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provision of this Article.
ARTICLE NINE
(a) The number of directors constituting the initial Board of Directors is
three (3) and the names and addresses of
-3-
<PAGE> 5
the persons who are to serve as directors until the first annual meeting of the
shareholders or until their successors are elected and qualified are:
Kenneth Freeman, Mid-America Bldg., Midland, Texas
Hugh Munn, P. O. Box 4188, Odessa, Texas
William Hugh Munn, P. O. Box 4188, Odessa, Texas
(b) The number of directors of the corporation set forth in clause (a) of
this Article shall constitute the authorized number of directors until changed
by an amendment of a by-law duly adopted by the vote or written consent of the
holders of a majority of the then outstanding shares of stock of the
corporation.
ARTICLE TEN
The names and addresses of the incorporators are:
Jimmie B. Todd, 1509 Idlewood, Odessa, Texas
Bruce Bangert, 1705 Redbud, Odessa, Texas
Joel B. Locke, 4230 Bay Oaks, Odessa, Texas
IN WITNESS WHEREOF, we have hereunto set our hands this the 4th day of
October, 1976.
/s/ JIMMIE B. TODD
----------------------------
Jimmie B. Todd
/s/ BRUCE BANGERT
----------------------------
Bruce Bangert
/s/ JOEL B. LOCKE
----------------------------
Joel B. Locke
THE STATE OF TEXAS )
:
COUNTY OF ECTOR )
I, the undersigned, a Notary Public, do hereby certify that on the 4th day
of October, 1976, personally appeared JIMMIE B. TODD, BRUCE BANGERT and JOEL B.
LOCKE, who, each being by me first duly sworn, severally declared that they are
the persons who signed the foregoing document as incorporators, and that the
statements therein contained are true.
/s/ BARBARA L. MAGEE
----------------------------
Notary Public in and for
Ector County, Texas
(SEAL)
-4-
<PAGE> 6
<TABLE>
<S> <C> <C>
FORM PROMULGATED BY FILED
SECRETARY OF STATE In the Office of the
STATEMENT OF CHANGE OF Secretary of State of Texas
REGISTERED OFFICE OR REGISTERED MAR 01 1982
AGENT, OR BOTH,
BY A TEXAS DOMESTIC CORPORATION
</TABLE>
1. The name of the corporation is WARRIOR, INC.
2. The address, including street and number, of its present registered office as
shown in the records of the Secretary of State of the State of Texas prior to
filing this statement is 1003 W. Murphy, Odessa, Texas 79760
3. The address, including street and number, to which its registered office is
to be changed is Republic National Bank Building, c/o C T Corporation System,
Dallas, Texas 75201
(Give new address or state "no change")
4. The name of its present registered agent, as shown in the records of the
Secretary of State of the State of Texas, prior to filing this statement is
J. D. Chandler
5. The name of its new registered agent is C T CORPORATION SYSTEM
(Give new name or state "no change")
6. The address of its registered office and the address of the business office
of its registered agent, as changed, will be identical.
7. Such change was authorized by its board of directors.
/s/ [ILLEGIBLE]
Vice President
Sworn to February 12, 1982.
(date)
/s/ Sue S. Adams
Notary Public
[SEAL]
Los Angeles County, California
(Notary Seal)
INSTRUCTIONS:
Nos. 2 and 4, present office and present agent, must be completed even if one of
them is not changed. Submit two (2) copies with genuine signatures and notary
seals on each. Filing fee for a business (for profit) corporation is $10.00.
<PAGE> 7
To the Secretary of State
of the State of Texas:
C T Corporation System, as the registered agent for the domestic and
foreign corporations named on the attached list submits the following statement
for the purpose of changing the registered office for such corporations, in the
State of Texas:
1. The name of the corporation is See attached list
2. The post office address of its present registered office is Republic National
Bank Building, c/o C T Corporation System, Dallas, Texas 75201
3. The post office address to which its registered office is to be changed is
1601 Elm Street, c/o C T Corporation System, Dallas, Texas 75201
4. The name of its present registered agent is C T CORPORATION SYSTEM
5. The name of its successor registered agent is C T CORPORATION SYSTEM
6. The post office address of its registered office and the post office address
of the business office of its registered agent, as charged, will be
identical.
7. Notice of this change of address has been given in writing to each
corporation named on the attached list 10 days prior to the date of filing of
this certificate.
Dated January 6, 1985.
C T CORPORATION SYSTEM
By /s/ VIRGINIA COLVELL
Its Vice President
STATE OF NEW YORK )
COUNTY OF NEW YORK )
I, Regina M. Dunn a notary public, do hereby certify that on this 27th day
of December 1984, personally appeared before me Virginia Colvell who being by me
first duly sworn, declared that she is the Vice President of
<PAGE> 8
To the Secretary of State
of the State of Texas:
C T Corporation System, as the registered agent for the domestic and
foreign corporations named on the attached list submits the following statement
for the purpose of changing the registered office for such corporations, in the
State of Texas:
1. The name of the corporation is See attached list
2. The post office address of its present registered office is c/o C T
CORPORATION SYSTEM, 1601 ELM STREET, DALLAS, TEXAS 75201
3. The post office address to which its registered office is to be changed is
c/o C T CORPORATION SYSTEM, 350 N. ST. PAUL STREET, DALLAS, TEXAS 75201
4. The name of its present registered agent is C T CORPORATION SYSTEM
5. The name of its successor registered agent is C T CORPORATION SYSTEM
6. The post office address of its registered office and the post office address
of the business office of its registered agent, as charged, will be
identical.
7. Notice of this change of address has been given in writing to each
corporation named on the attached list 10 days prior to the date of filing of
this certificate.
Dated July 2, 1990.
C T CORPORATION SYSTEM
By /s/ HERBERT R. LITMAN
Its Vice President
<PAGE> 1
EXHIBIT 3.4
BYLAWS
OF
WARRIOR, INC.
A TEXAS CORPORATION
ADOPTED AS OF JULY 19, 1995
<PAGE> 2
TABLE OF CONTENTS
TO
BYLAWS
OF
WARRIOR, INC.
A TEXAS CORPORATION
ARTICLE I
REGISTERED OFFICE
ARTICLE II
SHAREHOLDERS
Section 1. Place of Meetings.............................................1
Section 2. Quorum; Required Vote for Shareholder Action;
Adjournment of Meetings.......................................1
Section 3. Annual Meetings...............................................2
Section 4. Special Meetings..............................................2
Section 5. Closing Share Transfer Records; Record Date...................2
Section 6. Notice of Meetings............................................3
Section 7. Voting List...................................................3
Section 8. Proxies.......................................................4
Section 9. Voting; Inspectors; Elections.................................5
Section 10. Conduct of Meetings...........................................5
Section 11. Treasury Shares...............................................6
Section 12. Action by Written Consent or Telephone Conference.............6
Section 13. Fixing Record Dates for Consents to Action....................7
ARTICLE III
BOARD OF DIRECTORS
Section 1. Power; Number; Term of Office.................................7
Section 2. Quorum; Required Vote for Director Action.....................8
Section 3. Meetings; Order of Business...................................8
Section 4. First Meeting.................................................8
Section 5. Regular Meetings..............................................8
Section 6. Special Meetings..............................................8
Section 7. Removal.......................................................8
Section 8. Vacancies; Increases in the Number of Directors...............9
Section 9. Compensation..................................................9
Section 10. Presumption of Assent.........................................9
Section 11. Approval or Ratification of Acts or Contracts by
Shareholders..................................................9
Section 12. Action by Written Consent or Telephone Conference.............9
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ARTICLE IV
COMMITTEES
Section 1. Designation; Powers..........................................10
Section 2. Procedure; Meetings; Quorum..................................11
Section 3. Dissolution..................................................11
ARTICLE V
OFFICERS
Section 1. Number, Titles and Term of Office............................12
Section 2. Salaries.....................................................12
Section 3. Removal......................................................12
Section 4. Vacancies....................................................12
Section 5. Powers and Duties of the Chief Executive Officer.............12
Section 6. Powers and Duties of the Chairman of the Board...............12
Section 7. Powers and Duties of the President...........................12
Section 8. Vice Presidents..............................................13
Section 9. Treasurer....................................................13
Section 10. Assistant Treasurers.........................................13
Section 11. Secretary....................................................13
Section 12. Assistant Secretaries........................................14
Section 13. Action With Respect to Securities of Other Corporations......14
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
Section 1. Right to Indemnification.....................................14
Section 2. Advance Payment..............................................14
Section 3. Indemnification of Employees and Agents......................15
Section 4. Appearance as a Witness......................................15
Section 5. Nonexclusivity of Rights.....................................15
Section 6. Insurance....................................................15
Section 7. Shareholder Notification.....................................15
Section 8. Savings Clause...............................................16
ARTICLE VII
CAPITAL STOCK
Section 1. Certificates of Stock........................................16
Section 2. Transfer of Shares...........................................16
Section 3. Ownership of Shares..........................................17
Section 4. Regulations Regarding Certificates...........................17
Section 5. Lost, Stolen, Destroyed or Mutilated Certificates............17
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year............................................. 17
Section 2. Corporate Seal.......................................... 17
Section 3. Notice and Waiver of Notice............................. 18
Section 4. Resignations............................................ 18
Section 5. Facsimile Signatures.................................... 18
Section 6. Books and Records....................................... 18
ARTICLE IX
AMENDMENTS......................................................... 18
<PAGE> 5
BYLAWS
OF
WARRIOR, INC.
A Texas Corporation
ARTICLE I
REGISTERED OFFICE
The registered office of the Corporation required by the Texas Business
Corporation Act (the "TBCA") to be maintained in the State of Texas shall be
the registered office named in the original Articles of Incorporation of the
Corporation or such other office (which need not be a place of business of the
Corporation) as may be designated from time to time by the Board of Directors
in the manner provided by law.
ARTICLE II
SHAREHOLDERS
Section 1. Place of Meetings. All meetings of the shareholders shall
be held at the principal place of business of the Corporation or at such other
place within or without the State of Texas as shall be specified or fixed in
the notices or waivers of notice thereof, provided that any or all shareholders
may participate in any such meeting by means of conference telephone or similar
communications equipment pursuant to Article II, Section 12 of these bylaws.
Section 2. Quorum; Required Vote for Shareholder Action; Adjournment of
Meetings. (a) Quorum. A quorum shall be present at a meeting of shareholders
if the holders of a majority of the shares entitled to vote are represented at
the meeting in person or by proxy, unless otherwise provided in the Articles of
Incorporation in accordance with the TBCA.
(b) Voting on Matters Other Than the Election of Directors. With
respect to any matter, other than the election of directors or a matter for
which the affirmative vote of the holders of a specified portion of the shares
entitled to vote is required by the TBCA, the affirmative vote of the holders
of a majority of the shares entitled to vote on that matter and represented in
person or by proxy at a meeting of shareholders at which a quorum is present
shall be the act of the shareholders, unless otherwise provided in the Articles
of Incorporation or these bylaws in accordance with the TBCA.
(c) Voting in the Election of Directors. Unless otherwise provided
in the Articles of Incorporation or these bylaws in accordance with the TBCA,
directors shall be elected by a plurality
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of the votes cast by the holders of shares entitled to vote in the election of
directors at a meeting of shareholders at which a quorum is present.
(d) Adjournment. Notwithstanding the other provisions of the
Articles of Incorporation or these bylaws, the chairman of the meeting or the
holders of a majority of the shares entitled to vote that are represented in
person or by proxy at any meeting of shareholders, whether or not a quorum is
present, shall have the power to adjourn such meeting from time to time,
without any notice other than announcement at the meeting of the time and place
of the holding of the adjourned meeting. If such meeting is adjourned by the
shareholders, such time and place shall be determined by a vote of the holders
of a majority of the shares entitled to vote that are represented in person or
by proxy at such meeting. Upon the resumption of such adjourned meeting, any
business may be transacted that might have been transacted at the meeting as
originally called.
Section 3. Annual Meetings. An annual meeting of the shareholders, for
the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, within or without the State of Texas, on such date
and at such time as the Board of Directors shall fix and set forth in the
notice of the meeting, which date shall be within 13 months subsequent to the
date of incorporation or the last annual meeting of shareholders, whichever
most recently occurred.
Section 4. Special Meetings. Unless otherwise provided in the Articles
of Incorporation, special meetings of the shareholders for any proper purpose
or purposes may be called at any time by (a) the Chairman of the Board (if
any), the President, the Board of Directors, or such other person or persons as
may be authorized in the Articles of Incorporation or (b) unless the Articles
of Incorporation provide otherwise, the holders of at least ten percent of all
the shares entitled to vote at the proposed special meeting.
If not otherwise stated in or fixed in accordance with the remaining
provisions hereof, the record date for determining shareholders entitled to
call a special meeting is the date any shareholder first signs the notice of
that meeting.
Only business within the purpose or purposes described in the notice
(or waiver thereof) required by these bylaws may be conducted at a special
meeting of the shareholders.
Section 5. Closing Share Transfer Records; Record Date. For the purpose
of determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled to receive a distribution
by the Corporation (other than a distribution involving a purchase or
redemption by the Corporation of any of its own shares) or a share dividend,
or in order to make a determination of shareholders for any other purpose
(other than determining shareholders entitled to consent to action by
shareholders proposed to be taken without a meeting of shareholders), the Board
of Directors of the Corporation may provide that the share transfer records
shall be closed for a stated period but not to exceed, in any case, 60 days. If
the share transfer records shall be closed for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of shareholders,
such records shall be closed for at least ten days immediately preceding such
meeting.
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In lieu of closing the share transfer records, the Board of Directors
may fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than 60 days and, in the
case of a meeting of shareholders, not less than ten days, prior to the date on
which the particular action requiring such determination of shareholders is to
be taken.
If the share transfer records are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or to vote at
a meeting of shareholders, or shareholders entitled to receive a distribution
(other than a distribution involving a purchase or redemption by the
Corporation of any of its own shares) or a share dividend, the date on which
notice of the meeting is mailed or the date on which the resolution of the
Board of Directors declaring such distribution or share dividend is adopted, as
the case may be, shall be the record date for such determination of
shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided herein, such determination shall also
apply to any adjournment thereof except where the determination has been made
through the closing of share transfer records and the stated period of closing
has expired.
Section 6. Notice of Meetings. Written or printed notice stating the
place, day and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not
less than ten nor more than 60 days before the date of the meeting, either
personally or by mail, by or at the direction of the President, the Secretary
or the officer or person calling the meeting, to each shareholder entitled to
vote at such meeting. If mailed, any such notice shall be deemed to be
delivered when deposited in the United States mail, addressed to the shareholder
at his address as it appears on the share transfer records of the Corporation,
with postage thereon prepaid.
Any notice required to be given to any shareholder, under any provision
of the TBCA or the Articles of Incorporation or these bylaws need not be given
to the shareholder if (a) notice of two consecutive annual meetings and all
notices of meetings held during the period between those annual meetings, if
any, or (b) all (but in no event less than two) payments of distributions or
interest on securities during a 12-month period have been mailed to that person
by first-class mail, addressed to him at his address as shown on the share
transfer records of the Corporation, and have been returned undeliverable. Any
action or meeting taken or held without notice to such person shall have the
same force and effect as if the notice had been duly given and, if the action
taken by the Corporation is reflected in any articles or document filed with
the Secretary of State, those articles or that document may state that notice
was duly given to all persons to whom notice was required to be given. If such
a person delivers to the Corporation written notice setting forth his then
current address, the requirement that notice be given to that person shall be
reinstated.
Section 7. Voting List. The officer or agent having charge of the
share transfer records of the Corporation shall make, at least ten days before
each meeting of shareholders, a complete list of the shareholders entitled to
vote at such meeting or any adjournment thereof, arranged in alphabetical
order, with the address of and the number of shares held by each, which list,
for a period of ten days prior to such meeting, shall be kept on file at the
registered office or principal place of business of the
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Corporation and shall be subject to inspection by any shareholder at any time
during usual business hours. Such list shall also be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting. The original share transfer
records shall be prima-facie evidence as to who are the shareholders entitled
to examine such list or transfer records or to vote at any meeting of
shareholders. Failure to comply with the requirements of this Section shall
not affect the validity of any action taken at such meeting.
Section 8. Proxies. A shareholder may vote either in person or by
proxy executed in writing by the shareholder. A telegram, telex, cablegram or
similar transmission by the shareholder, or a photographic, photostatic,
facsimile or similar reproduction of a writing executed by the shareholder
shall be treated as an execution in writing for purposes of this Section.
Proxies for use at any meeting of shareholders or in connection with the taking
of any action by written consent shall be filed with the Secretary, or such
other officer as the Board of Directors may from time to time determine by
resolution, before or at the time of the meeting or execution of the written
consent, as the case may be. All proxies shall be received and taken charge of
and all ballots shall be received and canvassed by the secretary of the meeting
who shall decide all questions touching upon the qualification of voters, the
validity of the proxies, and the acceptance or rejection of votes, unless an
inspector or inspectors shall have been appointed by the chairman of the
meeting, in which event such inspector or inspectors shall decide all such
questions.
No proxy shall be valid after 11 months from the date of its execution
unless otherwise provided in the proxy. A proxy shall be revocable unless the
proxy form conspicuously states that the proxy is irrevocable and the proxy is
coupled with an interest. Proxies coupled with an interest shall include the
appointment as proxy of any of the persons set forth in the TBCA, including
without limitation:
(a) a pledgee;
(b) a person who purchased or agreed to purchase, or owns or holds
an option to purchase, the shares;
(c) a creditor of the Corporation who extended it credit under
terms requiring the appointment;
(d) an employee of the Corporation whose employment contract
requires the appointment; or
(e) a party to a voting agreement executed under Section B,
Article 2.30 of the TBCA
Should a proxy designate two or more persons to act as proxies, unless
such instrument shall provide to 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, 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, the Corporation shall not be required to recognize such proxy with
respect to such issue if such proxy does not specify how the shares that are
the subject of such proxy are to be voted with respect to such issue.
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Section 9. Voting; Inspectors; Elections. Unless otherwise required by
law or provided in the Articles of Incorporation, each outstanding share,
regardless of class, shall be entitled to one vote on each matter submitted to
a vote at a meeting of shareholders. If the Articles of Incorporation provide
for more or less than one vote per share for all the outstanding shares or for
the shares of any class or series on any matter, every reference in these
bylaws or in the Article of Incorporation (unless expressly stated otherwise
therein), in connection with such matter, to a specified portion of such shares
shall mean such portion of the votes entitled to be cast in respect of such
shares by virtue of the provisions of such Articles of Incorporation.
All voting, except as required by the Articles of Incorporation or
where otherwise required by law, may be by a voice vote; provided, however,
that a vote by ballot shall be taken upon demand therefor by shareholders
holding issued and outstanding shares representing a majority of the voting
power present in person or by proxy at any meeting. Every vote by ballot shall
be taken by written ballots, each of which shall state the name of the
shareholder or proxy voting and such other information as may be required under
the procedure established for the meeting.
At any meeting at which a vote is taken by ballots, the chairman of the
meeting may appoint one or more inspectors, each of whom shall subscribe an
oath or affirmation to execute faithfully the duties of inspector at such
meeting with strict impartiality and according to the best of his ability. Such
inspector shall receive the ballots, count the votes and make and sign a
certificate of the result thereof. The chairman of the meeting may appoint any
person to serve as inspector, except no candidate for the office of director
shall be appointed as an inspector.
At each election of directors each shareholder entitled to vote thereat
shall, unless otherwise provided by law or by the Articles of Incorporation,
have the right to vote the number of shares owned by him for as many persons as
there are to be elected and for whose election he has a right to vote. Unless
expressly prohibited by the Articles of Incorporation, a shareholder shall have
the right to cumulate his votes by giving one candidate as many votes as the
number of such directors multiplied by his shares shall equal, or by
distributing such votes on the same principle among any number of such
candidates. Any shareholder who intends to cumulate his votes shall give
written notice of such intention to the Secretary of the Corporation on or
before the day preceding the election at which such shareholder intends to
cumulate his votes.
Section 10. Conduct of Meetings. All meetings of the shareholders
shall be presided over by the chairman of the meeting, who shall be the
Chairman of the Board (if any), or if he is not present, the President, or if
neither the Chairman of the Board (if any) nor President is present, a chairman
elected at the meeting. The Secretary of the Corporation, if present, shall
act as secretary of such meetings, or if he is not present, an Assistant
Secretary (if any) shall so act; if neither the Secretary nor an Assistant
Secretary (if any) is present, then a secretary shall be appointed by the
chairman of the meeting. The chairman of any meeting of shareholders shall
determine the order of business and the procedure at the meeting, including
such regulation of the manner of voting and the conduct of discussion as seem
to him in order. Unless the chairman of the meeting shall otherwise determine
or otherwise conduct the meeting, the order of business shall be as follows:
(a) Calling of meeting to order.
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(b) Election of a chairman, and the appointment of a secretary, if
necessary.
(c) Presentation of proof of the due calling of the meeting.
(d) Presentation and examination of proxies and determination of a
quorum.
(e) Reading and settlement of the minutes of the previous meeting.
(f) Reports of officers and committees.
(g) The election of directors, if an annual meeting or a meeting
called for that purpose.
(h) Other business.
(i) Adjournment.
Section 11. Treasury Shares. Neither the Corporation nor any other
person shall vote, directly or indirectly, at any meeting, shares of the
Corporation's own stock owned by the Corporation, shares of the Corporation's
own stock owned by another corporation the majority of the voting stock of
which is owned or controlled by the Corporation, and shares of the Corporation's
own stock held by the Corporation in a fiduciary capacity; and such shares
shall not be counted in determining the total number of outstanding shares at
any given time.
Section 12. Action by Written Consent or Telephone Conference. Any
action required or permitted to be taken at any annual or special meeting of
shareholders may be taken without a meeting, without prior notice, and without
a vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holder or holders of (i) all the shares entitled to vote
with respect to the action that is the subject of the consent, or (ii) if
provided in the Articles of Incorporation, shares having not less than the
minimum number of votes that would be required to take such action at a meeting
at which the holders of all shares entitled to vote on such action were present
and voted.
Every written consent shall bear the date of signature of each
shareholder who signs the consent. No written consent shall be effective to
take the action that is the subject to the consent unless, within 60 days after
the date of the earliest dated consent delivered to the Corporation in the
manner required by this Section, a consent or consents signed by the holder or
holders of shares having not less than the minimum number of votes that would
be necessary to take the action that is the subject of the consent are
delivered to the Corporation by delivery to its registered office, its
principal place of business, or an officer or agent of the Corporation having
custody of the books in which proceedings of meetings of shareholders are
recorded. Delivery shall be by hand or certified or registered mail, return
receipt requested. Delivery to the Corporation's principal place of business
shall be addressed to the President or chief executive officer.
A telegram, telex, cablegram or similar transmission by a shareholder,
or a photostatic, facsimile or similar reproduction of a writing signed by a
shareholder, shall be regarded as signed by the shareholder for purposes of
this Section.
Prompt notice of the taking of any action by shareholders without a
meeting by less than unanimous written consent shall be given to those
shareholders who did not consent in writing to the action.
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If any action by shareholders is taken by written consent, any articles
or documents filed with the Secretary of State as a result of the taking of the
action shall state, in lieu of any statement required by the TBCA concerning
any vote of shareholders, that written consent has been given in accordance
with the provisions of the TBCA and that any written notice required by the
TBCA has been given.
Subject to the provisions of the TBCA, the Articles of Incorporation or
these bylaws for notice of meetings, and unless otherwise restricted by the
Articles of Incorporation, shareholders 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.
Section 13. Fixing Record Dates for Consents to Action. Whenever
action by shareholders is proposed to be taken by consent in writing without a
meeting of shareholders, the Board of Directors may fix a record date for the
purpose of determining shareholders entitled to consent to that action, which
record date shall not precede, and shall not be more than ten days after, the
date upon which the resolution fixing the record date is adopted by the Board
of Directors. If no record date has been fixed by the Board of Directors and
the prior action of the Board of Directors is not required by law, the Articles
of Incorporation or these bylaws, the record date for determining shareholders
entitled to consent to action in writing without a meeting shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery to its
registered office, its principal place of business, or an officer or agent of
the Corporation having custody of the books in which proceedings of meetings of
shareholders are recorded. Delivery shall be by hand or by certified or
registered mail, return receipt requested. Delivery to the Corporation's
principal place of business shall be addressed to the President or the chief
executive officer of the Corporation. If no record date shall have been fixed
by the Board of Directors and prior action of the Board of Directors is
required by the TBCA, the Articles of Incorporation or these bylaws, the record
date for determining shareholders entitled to consent to action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts a resolution taking such prior action.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Power; Number; Term of Office. The powers of the
Corporation shall be exercised by or under the authority of, and the business
and affairs of the Corporation shall be managed under the direction of, the
Board of Directors.
Unless otherwise provided in the Articles of Incorporation, the number
of directors that shall constitute the entire Board of Directors shall be
determined from time to time by resolution of the Board of Directors (provided
that no decrease in the number of directors that would have the effect of
shortening the term of an incumbent director may be made by the Board of
Directors). If the
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Board of Directors makes no such determination, the number of directors shall
be the number set forth in the Articles of Incorporation as the number of
directors constituting the initial Board of Directors. Each director shall
hold office for the term for which he is elected and thereafter until his
successor shall have been elected and qualified, or until his earlier death,
resignation or removal.
Unless otherwise provided in the Articles of Incorporation, directors
need not be shareholders of the Corporation or residents of the State of Texas.
Section 2. Quorum; Required Vote for Director Action. Unless otherwise
required by law or provided in the Articles of Incorporation or these bylaws, a
majority of the total number of directors fixed by, or in the manner provided
in, the Articles of Incorporation or these bylaws shall constitute a quorum for
the transaction of business of the Board of Directors, and the act of a
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 3. Meetings; Order of Business. Meetings of the Board of
Directors may be held at such place or places as shall be determined from time
to time by resolution of the Board of Directors. At all meetings of the Board
of Directors business shall be transacted in such order as shall from time to
time be determined by the Chairman of the Board (if any), or in his absence by
the President (if the President is a director), or by resolution of the Board
of Directors.
Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except where a director attends a 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.
Section 4. First Meeting. In connection with any annual meeting of
shareholders at which directors were elected, the Board of Directors may, if a
quorum is present, hold its first meeting for the transaction of business
immediately after and at the same place as such annual meeting of the
shareholders. Notice of such meeting at such time and place shall not be
required.
Section 5. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times and places as shall be designated from
time to time by resolution of the Board of Directors. Notice of such regular
meetings shall not be required.
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board (if any), the President or, on the
written request of any one director, by the Secretary, in each case on at least
24 hours personal, written, telegraphic, cable or wireless notice to each
director. Such notice, or any waiver thereof pursuant to Article VIII, Section
3 hereof, need not state the purpose or purposes of such meeting, except as may
otherwise be required by law or provided for by the Articles of Incorporation
or these bylaws.
Section 7. Removal. At any meeting of shareholders at which a quorum
of shareholders is present called expressly for that purpose, or pursuant to a
written consent adopted pursuant to Article II, Section 12 hereof, any director
may be removed, with or without cause, by vote of the holders of issued and
outstanding shares representing a majority of the votes entitled to be cast for
the election
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of such director; provided that, if the shareholders have the right to cumulate
votes for the election of directors, and less than the entire Board of
Directors is to be removed, no director may be removed if the votes cast
against his removal would be sufficient to elect him if then cumulatively voted
(a) at an election of the entire Board of Directors, or (b) if there be classes
of directors, at an election of the class of directors of which such director
is a part.
Section 8. Vacancies; Increases in the Number of Directors. Any
directorship to be filled by reason of an increase in the number of directors
may be filled (a) by the Board of Directors for a term of office continuing
only until the next election of one or more directors by the shareholders;
provided, however, that during the period between any two successive annual
meetings of shareholders, the Board of Directors may not fill more than two
such directorships; or (b) by election at an annual or special meeting of
shareholders entitled to vote in the election of such directors called for that
purpose.
Any vacancy occurring in the Board of Directors other than by reason of
an increase in the number of directors may be filled (a) by election at an
annual or special meeting of the shareholders called for that purpose or (b) by
the affirmative vote of a majority of the remaining directors though less than
a quorum of the Board of Directors. A director elected to fill a vacancy
occurring other than by reason of an increase in the number of directors shall
be elected for the unexpired term of his predecessor in office.
Section 9. Compensation. Unless restricted by the Articles of
Incorporation, the Board of Directors shall have the authority to fix the
compensation, if any, of directors.
Section 10. Presumption of Assent. A director who is present at a
meeting of the Board of Directors at which action on any corporate matter is
taken shall be presumed to have assented to the action unless his dissent shall
be entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as secretary of the meeting
before the adjournment thereof or shall forward such dissent by registered mail
to the Secretary immediately after the adjournment of the meeting. Such right
to dissent shall not apply to a director who voted in favor of such action.
Section 11. Approval or Ratification of Acts or Contracts by
Shareholders. The Board of Directors in its discretion may submit any act or
contract for approval or ratification at any annual meeting of the
shareholders, or at any special meeting of the shareholders called for the
purpose of considering any such act or contract, and any act or contract that
shall be approved or be ratified by the vote of the shareholders holding a
majority of the issued and outstanding shares of stock of the Corporation
entitled to vote and represented in person or by proxy at such meeting
(provided that a quorum is present), shall be as valid and as binding upon the
Corporation and upon all the shareholders as if it shall have been approved or
ratified by every shareholder of the Corporation.
Section 12. Action by Written Consent or Telephone Conference. Any
action permitted or required by the TBCA, the Articles of Incorporation or
these bylaws to be taken at a meeting of the Board of Directors or any
committee designated by the Board of Directors may be taken without a meeting
if a consent in writing, setting forth the action to be taken, is signed by all
the members of
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the Board of Directors or committee, as the case may be. Such consent shall
have the same force and effect as a unanimous vote at a meeting and may be
stated as such in any document or instrument filed with the Secretary of State,
and the execution of such consent shall constitute attendance or presence in
person at a meeting of the Board of Directors or any such committee, as the
case may be. Subject to the requirements of the TBCA, the Articles of
Incorporation or these bylaws for notice of meetings, unless otherwise
restricted by the Articles of Incorporation, members of the Board of Directors,
or members of any committee designated by the Board of Directors, may
participate in and hold a meeting of the Board of Directors or any committee of
directors, as the case may be, by means of a 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.
ARTICLE IV
COMMITTEES
Section 1. Designation; Powers. The Board of Directors, by resolution
adopted by a majority of the full Board of Directors, may designate from among
its members one or more committees, each of which shall be comprised of one or
more of its members, and may designate one or more of its members as alternate
members of any committee, who may, subject to any limitations imposed by the
Board of Directors, replace absent or disqualified members at any meeting of
that committee. Any such committee, to the extent provided in such resolution
or in the Articles of Incorporation or bylaws shall have and may exercise all
of the authority of the Board of Directors, subject to the limitations set
forth in the TBCA or below.
No committee of the Board of Directors shall have the authority of the
Board of Directors in reference to:
(1) amending the Articles of Incorporation, except that a
committee may, to the extent provided in the resolution designating
that committee or in the Articles of Incorporation or these bylaws,
exercise the authority of the Board of Directors vested in it in
accordance with Article 2.13 of the TBCA;
(2) proposing a reduction in the stated capital of the
Corporation in the manner permitted by Article 4.12 of the TBCA;
(3) approving a plan of merger or share exchange of the
Corporation;
(4) recommending to the shareholders the sale, lease or
exchange of all or substantially all of the property and assets of the
Corporation otherwise than in the usual and regular course of its
business;
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(5) recommending to the shareholders a voluntary dissolution
of the Corporation or a revocation thereof;
(6) amending, altering or repealing the bylaws of the
Corporation or adopting new bylaws of the Corporation;
(7) filling vacancies in the Board of Directors;
(8) filling vacancies in or designating alternate members of
any such committee;
(9) filling any directorship to be filled by reason of an
increase in the number of directors;
(10) electing or removing officers of the Corporation or
members or alternate members of any such committee;
(11) fixing the compensation of any member or alternate
members of such committee; or
(12) altering or repealing any resolution of the Board of
Directors that by its terms provides that it shall not be so amendable
or repealable.
Unless the resolution designating a particular committee, the Articles
of Incorporation or these bylaws expressly so provide, no committee of the
Board of Directors shall have the authority to authorize a distribution (as
such term is defined in the TBCA) or to authorize the issuance of shares of the
Corporation.
Section 2. Procedure; Meetings; Quorum. Any committee designated
pursuant to Section 1 of this Article shall choose its own chairman and
secretary, shall keep regular minutes of its proceedings and report the same to
the Board of Directors when requested, shall fix its own rules or procedures,
and shall meet at such times and at such place or places as may be provided by
such rules, or by resolution of such committee or of the Board of Directors. At
every meeting of any such committee, the presence of a majority of all the
members thereof shall constitute a quorum, and the affirmative vote of a
majority of the members present shall be necessary for the adoption by it of
any resolution.
Section 3. Dissolution. The Board of Directors may dissolve any
committee at any time, unless otherwise provided in the Articles of
Incorporation or these bylaws.
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<PAGE> 16
ARTICLE V
OFFICERS
Section 1. Number, Titles and Term of Office. The officers of the
Corporation shall be a President and a Secretary and such other officers as the
Board of Directors may from time to time elect or appoint, including, without
limitation, A Chairman of the Board, one or more Vice Presidents (any one or
more of whom may be designated Executive Vice President or Senior Vice
President), a Treasurer, one or more Assistant Treasurers and one or more
Assistant Secretaries. Each officer shall hold office until his successor
shall be duly elected and shall qualify or until his death or until he shall
resign or shall have been removed in the manner hereinafter provided. Any
number of offices may be held by the same person. Except for the Chairman of
the Board, if any, no officer need be a director.
Section 2. Salaries. The salaries or other compensation, if any, of
the officers and agents of the Corporation shall be fixed from time to time by
the Board of Directors.
Section 3. Removal. Any officer or agent or member of a committee
elected or appointed by the Board of Directors may be removed, either with or
without cause, by the Board of Directors whenever in its judgment the best
interests of the Corporation will be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent or member of a committee shall
not of itself create contract rights.
Section 4. Vacancies. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors.
Section 5. Powers and Duties of the Chief Executive Officer. The
President shall be the chief executive officer of the Corporation unless the
Board of Directors designates the Chairman of the Board (if any) or other
officer as chief executive officer. Subject to the control of the Board of
Directors, the chief executive officer shall have general executive charge,
management and control of the properties, business and operations of the
Corporation with all such powers as may be reasonably incident to such
responsibilities; he may agree upon and execute all leases, contracts,
evidences of indebtedness and other obligations in the name of the Corporation
and may sign all certificates for shares of capital stock of the Corporation;
and he shall have such other powers and duties as designated in accordance with
these bylaws and as from time to time may be assigned to him by the Board of
Directors.
Section 6. Powers and Duties of the Chairman of the Board. The
Chairman of the Board (if any) shall preside at all meetings of the
shareholders and of the Board of Directors; and the Chairman shall have such
other powers and duties as designated in these bylaws and as from time to time
may be assigned to him by the Board of Directors.
Section 7. Powers and Duties of the President. Unless the Board of
Directors otherwise determines, the President shall have the authority to agree
upon and execute all leases, contracts,
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<PAGE> 17
evidences of indebtedness and other obligations in the name of the Corporation;
and, unless the Board of Directors otherwise determines, he shall, in the
absence of the Chairman of the Board or if there be no Chairman of the Board,
preside at all meetings of the shareholders and (should he be a director) of
the Board of Directors; and the President shall have such other powers and
duties as designated in accordance with these bylaws and as from time to time
may be assigned to him by the Board of Directors.
Section 8. Vice Presidents. The Vice President(s), if any, shall
perform such duties and have such powers as the Board of Directors may from
time to time prescribe. In addition, in the absence of the Chairman of the
Board (if any) or President, or in the event of their inability or refusal to
act, (i) a Vice President designated by the Board of Directors or (ii) in the
absence of such designation, the Vice President who is present and who is
senior in terms of time as a Vice President of the Corporation, shall perform
the duties of the Chairman of the Board (if any), or the President, as the case
may be, and when so acting shall have all the powers of and be subject to all
the restrictions upon the Chairman of the Board (if any), or the President;
provided that he shall not preside at meetings of the Board of Directors unless
he is a director.
Section 9. Treasurer. The Treasurer, if any, shall have responsibility
for the custody and control of all the funds and securities of the Corporation,
and he shall have such other powers and duties as designated in these bylaws
and as from time to time may be assigned to him by the Board of Directors. He
shall perform all acts incident to the position of Treasurer subject to the
control of the chief executive officer and the Board of Directors; and the
Treasurer shall, if required by the Board of Directors, give such bond for the
faithful discharge of his duties in such form as the Board of Directors may
require.
Section 10. Assistant Treasurers. Each Assistant Treasurer, if any,
shall have the usual powers and duties pertaining to his office, together with
such other powers and duties as designated in these bylaws and as from time to
time may be assigned to him by the chief executive officer or the Board of
Directors or the Treasurer. The Assistant Treasurers shall exercise the powers
of the Treasurer during that officer's absence or inability or refusal to act.
Section 11. Secretary. The Secretary shall keep the minutes of all
meetings of the Board of Directors, and the minutes of all meetings of the
shareholders, in books provided for that purpose; he shall attend to the
giving and serving of all notices; he may in the name of the Corporation affix
the seal (if any) of the Corporation to all contracts of the Corporation and
attest thereto; he may sign with the other appointed officers all certificates
for shares of capital stock of the Corporation; he shall have charge of the
certificate books, transfer books and stock ledgers, and such other books and
papers as the Board of Directors may direct, all of which shall at all
reasonable times be open to inspection of any director upon application at the
office of the Corporation during business hours; he shall have such other
powers and duties as designated in these bylaws and as from time to time may be
assigned to him by the chief executive officer or the Board of Directors; and
he shall in general perform all duties incident to the office of Secretary,
subject to the control of the chief executive officer and the Board of
Directors.
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<PAGE> 18
Section 12. Assistant Secretaries. Each Assistant Secretary, if any,
shall have the usual powers and duties pertaining to his office, together with
such other powers and duties as designated in these bylaws and as from time to
time may be assigned to him by the chief executive officer or the Board of
Directors or the Secretary. The Assistant Secretaries shall exercise the
powers of the Secretary during that officer's absence or inability or refusal
to act.
Section 13. Action With Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, each of the chief
executive officer and the Treasurer (if any), or either of them, shall have
power to vote and otherwise act on behalf of the Corporation, in person or by
proxy, at any meeting of shareholders of or with respect to any action of
shareholders of any other corporation in which this Corporation may hold
securities and otherwise to exercise any and all rights and powers which this
Corporation may possess by reason of its ownership of securities in such other
corporation.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
Section 1. Right to Indemnification. Subject to the limitations and
conditions as provided in this Article VI, each person who was or is made a
party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative (hereinafter a "proceeding"), or
any appeal in such a proceeding or any inquiry or investigation that could lead
to such 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 while a director or officer of the Corporation is or was serving
at the request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise shall be indemnified by the
Corporation to the fullest extent permitted by the TBCA, 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 judgments, penalties (including excise and similar
taxes and punitive damages), fines, settlements and reasonable expenses
(including, without limitation, attorneys' fees) actually incurred by such
person in connection with such proceeding, and indemnification under this
Article VI shall continue as to a person who has ceased to serve in the
capacity which initially entitled such person to indemnity hereunder. The
rights granted pursuant to this Article VI shall be deemed contract rights, and
no amendment, modification or repeal of this Article VI shall have the effect
of limiting or denying any such rights with respect to actions taken or
proceedings arising prior to any such amendment, modification or repeal. It is
expressly acknowledged that the indemnification provided in this Article VI
could involve indemnification for negligence or under theories of strict
liability.
Section 2. Advance Payment. The right to indemnification conferred in
this Article VI shall include the right to be paid or reimbursed by the
Corporation the reasonable expenses incurred by a
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<PAGE> 19
person of the type entitled to be indemnified under Section 1 who was, is or is
threatened to be made a named defendant or respondent in a proceeding in
advance of the final disposition of the proceeding and without any
determination as to the person's ultimate entitlement to indemnification;
provided, however, that the payment of such expenses incurred by any such
person in advance of the final disposition of a proceeding, shall be made only
upon delivery to the Corporation of a written affirmation by such director or
officer of his or her good faith belief that he or she has met the standard of
conduct necessary for indemnification under this Article VI and a written
undertaking, by or on behalf of such person, to repay all amounts so advanced
if it shall ultimately be determined that such indemnified person is not
entitled to be indemnified under this Article VI or otherwise.
Section 3. Indemnification of Employees and Agents. The Corporation,
by adoption of a resolution of the Board of Directors, may indemnify and
advance expenses to an employee or agent of the Corporation to the same extent
and subject to the same conditions under which it may indemnify and advance
expenses to directors and officers under this Article VI; and, the Corporation
may indemnify and advance expenses to persons who are not or were not
directors, officers, employees or agents of the Corporation but who are or were
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise against any
liability asserted against him and incurred by him in such a capacity or
arising out of his status as such a person to the same extent that it may
indemnify and advance expenses to directors under this Article VI.
Section 4. Appearance as a Witness. Notwithstanding any other
provision of this Article VI, the Corporation may pay or reimburse expenses
incurred by a director or officer in connection with his or her appearance as a
witness or other participation in a proceeding at a time when he or she is not
a named defendant or respondent in the proceeding.
Section 5. Nonexclusivity of Rights. The right to indemnification and
the advancement and payment of expenses conferred in this Article VI shall not
be exclusive of any other right which a director or officer or other person
indemnified pursuant to Section 3 of this Article VI may have or hereafter
acquire under any law (common or statutory), provision of the Articles of
Incorporation of the Corporation or these bylaws, agreement, vote of
shareholders or disinterested directors or otherwise.
Section 6. Insurance. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any person who is or was
serving as a director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another foreign or domestic corporation, partnership, joint venture,
proprietorship, employee benefit plan, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under this
Article VI.
Section 7. Shareholder Notification. To the extent required by law,
any indemnification of or advance of expenses to a director or officer in
accordance with this Article VI shall be reported in writing to the
shareholders with or before the notice or waiver of notice of the next
shareholders'
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<PAGE> 20
meeting or with or before the next submission to shareholders of a consent to
action without a meeting and, in any case, within the 12-month period
immediately following the date of the indemnification or advance.
Section 8. Savings Clause. If this Article VI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify and hold harmless each director,
officer or any other person indemnified pursuant to this Article VI as to
costs, charges and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative to the full extent
permitted by any applicable portion of this Article VI that shall not have been
invalidated and to the fullest extent permitted by applicable law.
ARTICLE VII
CAPITAL STOCK
Section 1. Certificates of Stock. The certificates for shares of the
capital stock of the Corporation shall be in such form, not inconsistent with
that required by law and the Articles of Incorporation, as shall be approved by
the Board of Directors. The Chairman of the Board (if any), President or a
Vice President (if any) shall cause to be issued to each shareholder one or
more certificates, which shall be signed by the Chairman of the Board (if any),
President or a Vice President (if any) and the Secretary or an Assistant
Secretary (if any) or the Treasurer or an Assistant Treasurer (if any)
certifying the number of shares (and, if the stock of the Corporation shall be
divided into classes or series, the class and series of such shares) owned by
such shareholder in the Corporation; provided, however, that any of or all the
signatures on the certificate may be facsimile. If the Board of Directors
shall have provided for a seal, such certificates shall bear such seal or a
facsimile thereof. The stock record books and the blank stock certificate books
shall be kept by the Secretary, or at the office of such transfer agent or
transfer agents as the Board of Directors may from time to time by resolution
determine. In case any officer, transfer agent or registrar who shall have
signed or whose facsimile signature or signatures shall have been placed upon
any such certificate or certificates shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued by the
Corporation, such certificate may nevertheless be issued by the Corporation
with the same effect as if such person were such officer, transfer agent or
registrar at the date of issue. The stock certificates shall be consecutively
numbered and shall be entered in the books of the Corporation as they are
issued and shall exhibit the holder's name and number of shares.
Each certificate shall conspicuously bear any legend required pursuant
to Article 2.19 or Article 2.22 of the TBCA, as well as any other legend
required by law.
Section 2. Transfer of Shares. The shares of stock of the Corporation
shall be transferable only on the books of the Corporation by the holders
thereof in person or by their duly authorized attorneys or legal
representatives, upon surrender and cancellation of certificates for a like
number of shares (or upon compliance with the provisions of Section 5 of this
Article VII, if applicable). Upon such surrender to the Corporation or a
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
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<PAGE> 21
transfer (or upon compliance with the provisions of Section 5 of this Article
VII, if applicable) and of compliance with any transfer restrictions applicable
thereto contained in an agreement to which the Corporation is a party or of
which the Corporation has knowledge by reason of legend with respect thereto
placed on any such surrendered stock certificate, 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.
Section 3. Ownership of Shares. Unless otherwise provided in the TBCA,
and subject to the provisions of Chapter 8 - Investment Securities of the Texas
Business & Commerce Code:
(i) the Corporation may regard the person in whose name any shares
issued by the Corporation are registered in the share transfer records of the
Corporation at any particular time (including, without limitation, as of a
record date fixed pursuant to Article 2.26B or 2.26C of the TBCA) as the owner
of those shares at that time for purposes of voting those shares, receiving
distributions thereon or notices in respect thereof, transferring those shares,
exercising rights of dissent with respect to those shares, exercising or
waiving any preemptive right with respect to those shares, entering into
agreements with respect to those shares in accordance with Article 2.22 or 2.30
of the TBCA, or giving proxies with respect to those shares; and
(ii) neither the Corporation nor any of its officers, directors,
employees, or agents shall be liable for regarding that person as the owner of
those shares at that time for those purposes, regardless of whether that person
does not possess a certificate for those shares.
Section 4. Regulations Regarding Certificates. The Board of Directors
shall have the power and authority to make a such rules and regulations as they
may deem expedient concerning the issuance, transfer and registration or the
replacement of certificates for shares of capital stock of the Corporation.
Section 5. Lost, Stolen, Destroyed or Mutilated Certificates. The
Board of Directors may determine the conditions upon which a new certificate of
stock may be issued in place of a certificate that is alleged to have been
lost, stolen, destroyed or mutilated; and may, in its discretion, require the
owner of such certificate or his legal representative to give bond, with
sufficient surety, to indemnify the Corporation and each transfer agent and
registrar against any and all losses or claims which may arise by reason of the
issuance of a new certificate in the place of the one so lost, stolen,
destroyed or mutilated.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be
such as established from time to time by the Board of Directors.
Section 2. Corporate Seal. The Board of Directors may provide a
suitable seal, containing the name of the Corporation. The Secretary shall
have charge of the seal (if any). If and when so
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<PAGE> 22
directed by the Board of Directors, duplicates of the seal may be kept and used
by the Treasurer, if any, or by any Assistant Secretary or Assistant Treasurer.
Section 3. Notice and Waiver of Notice. Whenever any notice is
required to be given by law, the Articles of Incorporation or these bylaws,
except with respect to notices of meetings of shareholders (with respect to
which the provisions of Article II, Section 6 apply) and except with respect to
notices of special meetings of directors (with respect to which the provisions
of Article VII Section 6 apply), said notice shall be deemed to be sufficient
if given (a) by telegraphic, cable or wireless transmission or (b) by deposit
of same in a post office box in a sealed prepaid wrapper addressed to the
person entitled thereto at his address as it appears on the records of the
Corporation, and such notice shall be deemed to have been given on the day of
such transmission or mailing, as the case may be.
Whenever notice is required to be given by law, the Articles of
Incorporation or these bylaws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice.
Section 4. Resignations. Any director, member of a committee or
officer may resign at any time. Such resignation shall be made in writing and
shall take effect at the time specified therein, or if no time be specified, at
the time of its receipt by the chief executive officer or Secretary. The
acceptance of a resignation shall not be necessary to make it effective, unless
expressly so provided in the resignation.
Section 5. Facsimile Signatures. In addition to the provisions for the
use of facsimile signatures elsewhere specifically authorized in these bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors.
Section 6. Books and Records. The Corporation shall keep books and
records of account and shall keep minutes of the proceedings of its
shareholders, its Board of Directors and each committee of its Board of
Directors. The Corporation shall keep at its registered office or principal
place of business, or at the office of its transfer agent or registrar, a
record of the original issuance of shares issued by the Corporation and a
record of each transfer of those shares that have been presented to the
Corporation for registration of transfer. Such records shall contain the names
and addresses of all past and current shareholders of the Corporation and the
number and class of shares issued by the Corporation held by each of them. Any
books, records, minutes and share transfer records may be in written form or in
any other form capable of being converted into written form within a reasonable
time.
ARTICLE IX
AMENDMENTS
The Board of Directors may amend or repeal the Corporation's bylaws,
or adopt new bylaws, unless: (a) the Articles of Incorporation or the TBCA
reserves the power exclusively to the
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<PAGE> 23
shareholders in whole or part; or (b) the shareholders, in amending, repealing
or adopting a particular bylaw, expressly provide that the Board of Directors
may not amend or repeal that bylaw.
Unless the Articles of Incorporation or a bylaw adopted by the
shareholders provides otherwise as to all or some portion of the Corporation's
bylaws, the Corporation's shareholders may amend, repeal or adopt the
Corporation's bylaws even though the bylaws may also be amended, repealed or
adopted by the Board of Directors.
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<PAGE> 24
BYLAWS
OF
WARRIOR, INC.
A Texas Corporation
<PAGE> 1
EXHIBIT 3.5
State of California
Secretary of State
-----------------------------------
HTAC INVESTMENTS, INC.
I, BILL JONES, SECRETARY OF STATE OF THE STATE OF CALIFORNIA, HEREBY
CERTIFY:
THAT THE ANNEXED TRANSCRIPT WAS PREPARED BY AND IN THIS OFFICE FROM THE
RECORD ON FILE, OF WHICH IT PURPORTS TO BE A COPY, AND THAT IT IS FULL, TRUE
AND CORRECT.
IN WITNESS WHEREOF, I EXECUTE THIS
CERTIFICATE AND AFFIX THE GREAT SEAL
OF THE STATE OF CALIFORNIA THIS
JULY 12, 1995
-----------------------------------
[SEAL] /s/ BILL JONES
-----------------------------------
Bill Jones
Secretary of State
<PAGE> 2
FILED
IN THE OFFICE OF THE SECRETARY OF STATE
OF THE STATE OF CALIFORNIA
APRIL 25, 1990
MARCH FONG EU, SECRETARY OF STATE
ARTICLES OF INCORPORATION
OF
HTAC INVESTMENTS, INC.
I
The name of this corporation is HTAC Investments, Inc.
II
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business
or the practice of a profession permitted to be incorporated by the California
Corporations Code.
III
The name and address in the State of California of this corporation's
initial agent for service of process is:
Francis Roth
c/o HarCor Energy, Inc.
9401 Wilshire Blvd., Suite 570
Beverly Hills, California 90212
IV
This corporation is authorized to issue only one class of shares of
stock; and the total number of shares which this corporation is authorized to
issue is 10,000.
Dated: April 24, 1990
/s/ ROBIN F. FREEMAN
----------------------------
Robin F. Freeman
Sole Incorporator
<PAGE> 3
HTAC, INC.
Consent to Use of Name
Subject: HTAC Investments, Inc.
Proposed Incorporation in California
The undersigned hereby represents that he is an officer of HTAC,
Inc., a Delaware corporation qualified to do business in the State of
California.
The undersigned further represents that HTAC, Inc. has no objection to
the use of the corporate name HTAC Investments, Inc., and HEREBY CONSENTS to
the use of subject proposed corporate name in the state of California, only by
the incorporator of subject corporation, and hereby further requests that the
Secretary of State, State of California, declare no conflict with the corporate
name HTAC, Inc.
This consent is limited only to subject corporation and its
incorporator and is not intended as an abandonment of the corporate name HTAC,
Inc. or a waiver hereafter to protect HTAC, Inc.'s exclusive use of the name
HTAC, Inc.
Dated: April 24, 1990
By: /s/ FRANCIS ROTH
--------------------------------
Francis Roth, President
<PAGE> 1
EXHIBIT 3.6
B Y L A W S
O F
HTAC INVESTMENTS, INC.
A CALIFORNIA CORPORATION
Article I.
OFFICES
Section 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office
of the corporation shall be located at such place as the Board of Directors
shall from time to time determine.
Section 2. OTHER OFFICES. Other offices may at any time be established
by the Board of Directors or the Chief Executive Officer at any place or places
where the corporation is qualified to do business.
Article II.
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of Shareholders shall be
held at the principal executive office of the corporation or at any other place
within or without the State of California which may be designated either by the
Board of Directors or by the Shareholders in accordance with these Bylaws.
Section 2. ANNUAL MEETINGS. The annual meetings of Shareholders shall
be held on such date and time as shall be designated from time to time by the
Board of Directors or by the Shareholders in accordance with these Bylaws. If
the date set forth in these Bylaws falls upon a legal holiday, then such annual
meeting of Shareholders shall be held at the same time and place on the next
day thereafter ensuing which is not a legal holiday. At such annual meetings,
Directors shall be elected, and any other business may be transacted which is
within the powers of the Shareholders.
Section 3. SPECIAL MEETINGS. Special meetings of the Shareholders, for
the purpose of taking any action which is within the powers of the
Shareholders, may be called at any time by the Board of Directors or by the
holders of shares entitled to cast not less than ten percent of the votes at
the meeting. Upon request in writing that a special meeting of Shareholders be
called for any proper purpose, directed to the Chief Executive
<PAGE> 2
Officer, President, Vice-President or Secretary by any person (other than the
Board) entitled to call a special meeting of Shareholders, the officer
forthwith shall cause notice to be given to the Shareholders entitled to vote
that a meeting will be held at a time requested by the person or persons
calling the meeting, not less than thirty-five nor more than sixty days after
receipt of the request.
Section 4. NOTICE OF MEETINGS OF SHAREHOLDERS. Written notice of each
meeting of Shareholders, whether annual or special, shall be given to each
Shareholder entitled to vote thereat, either personally or by mail or other
means of written communication, charges prepaid, addressed to such Shareholder
at the address of such Shareholder appearing on the books of the corporation or
given by such Shareholder to the corporation for the purpose of notice. If any
notice addressed to the Shareholder at the address of such Shareholder
appearing on the books of the corporation is returned to the corporation by the
United States Postal Service marked to indicate that the United States Postal
Service is unable to deliver the notice to the Shareholder at such address, all
future notices shall be deemed to have been duly given without further mailing
if the same shall be available for the Shareholder upon written demand of the
Shareholder at the principal executive office of the corporation for a period
of one year from the date of the giving of the notice to all other
Shareholders. If no address appears on the books of the corporation or is given
by the Shareholder to the corporation for the purpose of notice, notice shall
be deemed to have been given to such Shareholder if sent by mail or other means
of written communication addressed to the place where the principal executive
office of the corporation is located, or if published at least once in a
newspaper of general circulation in the county in which the principal executive
office is located.
All such notices shall be given to each Shareholder entitled thereto
not less than ten days nor more than sixty days before the meeting. Any such
notice shall be deemed to have been given at the time when delivered personally
or deposited in the mail or sent by other means of written communication. An
affidavit of mailing of any such notice in accordance with the foregoing
provisions, executed by the Secretary, Assistant Secretary or any transfer
agent of the corporation shall be prima facie evidence of the giving of the
notice.
All such notices shall state the place, date and hour of such meeting.
In the case of a special meeting such notice shall also state the general
nature of the business to be transacted at such meeting, and no other business
may be transacted thereat. In the case of an annual meeting, such notice shall
also state those matters which the Board of Directors at the time of the
mailing of the notice intends to present for action by the Shareholders. Any
proper matter may be presented at an annual meeting of Shareholders though not
stated in the notice, provided that unless the general nature of a proposal to
be approved by the Shareholders relating to the
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following matters is stated in the notice or a written waiver of notice, any
such Shareholder approval will require unanimous approval of all Shareholders
entitled to vote:
(a) A proposal to approve a contract or other transaction between the
corporation and one or more of its Directors or any corporation, firm or
association in which one or more of its Directors has a material financial
interest or is also a Director;
(b) A proposal to amend the Articles of Incorporation;
(c) A proposal to approve the principal terms of a reorganization as
defined in Section 181 of the General Corporation Law;
(d) A proposal to wind up and dissolve the corporation;
(e) If the corporation has preferred shares outstanding and the
corporation is in the process of winding up, a proposal to adopt a plan of
distribution of shares, obligations or securities of any other corporation or
assets other than money which is not in accordance with the liquidation rights
of the preferred shares.
The notice of any meeting at which Directors are to be elected shall
include the names of nominees intended at the time of the notice to be
presented by management for election.
Section 5. QUORUM. The presence in person or by proxy of the holders of
a majority of the shares entitled to vote at any meeting shall constitute a
quorum for the transaction of business. The Shareholders present at a duly
called or held meeting at which a quorum is present may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
Shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
Section 6. ADJOURNED MEETINGS AND NOTICE THEREOF. Any Shareholders'
meeting, annual or special, whether or not a quorum is present, may be
adjourned from time to time by vote of a majority of the shares the holders of
which are either present in person or by proxy thereat, but in the absence of a
quorum, no other business may be transacted at any such meeting, except as
provided in Section 4 of this Article II.
When any Shareholders' meeting, either annual or special, is adjourned
for forty-five days or more, or if after the adjournment a new record date is
fixed for the adjourned meeting, notice of the adjourned meeting shall be given
to each Shareholder of record entitled to vote at the adjourned meeting as in
the case of an original meeting. Except as set forth in this Section 6 of
Article II, it shall not be necessary to give
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any notice of an adjourned meeting or of the business to be transacted at an
adjourned meeting, other than by announcement of the time and place thereof at
the meeting at which such adjournment is taken.
Section 7. VOTING. At all meetings of Shareholders, every Shareholder
entitled to vote shall have the right to vote in person or by proxy the number
of shares standing in the name of such Shareholder on the stock records of the
corporation on the record date for such meeting. Shares held by an
administrator, executor, guardian, conservator, custodian, trustee, receiver,
pledgee, minor, corporation or fiduciary or held by this corporation or a
subsidiary of this corporation in a fiduciary capacity or by two or more
persons shall be voted in the manner set forth in Sections 702, 703, and 704 of
the General Corporation Law. Shares of this corporation owned by this
corporation or a subsidiary (except shares held in a fiduciary capacity) shall
not be entitled to vote. Unless a record date for voting purposes is fixed
pursuant to Section 1 of Article V of these Bylaws, then only persons in whose
names shares entitled to vote stand on the stock records of the corporation at
the close of business on the business day next preceding the day on which
notice is given or, if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is held, shall be
entitled to vote at such meeting, and such day shall be the record date for
such meeting. Votes at a meeting may be given by viva voce or by ballot;
provided, however, that all elections for Directors must be by ballot upon
demand made by a Shareholder at any election and before the voting begins. If a
quorum is present at the beginning of the meeting, except with respect to the
election of Directors (and subject to the provisions of Section 5 of this
Article II should Shareholders withdraw thereafter) the affirmative vote of the
majority of the shares represented at the meeting and entitled to vote on any
matter shall be the act of the Shareholders and shall decide any question
properly brought before the meeting, unless the vote of a greater number or
voting by classes is required by the General Corporation Law or the Articles of
Incorporation, in which case the vote so required shall govern and control the
decision of such question. Subject to the provisions of the next sentence, at
all elections of Directors of the corporation, each Shareholder shall be
entitled to cumulate his votes and give one candidate a number of votes equal
to the number of Directors to be elected multiplied by the number of votes to
which his shares are entitled, or to distribute his votes on the same principle
among as many candidates as he shall think fit. No Shareholder shall be
entitled to cumulate his votes unless the name of the candidate or candidates
for whom such votes would be cast has been placed in nomination prior to the
voting and any Shareholder has given notice at the meeting prior to the voting,
of such Shareholder's intention to cumulate his votes. The candidates receiving
the highest number of votes up to the number of Directors to be elected shall
be elected.
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Section 8. WAIVER OF NOTICE AND CONSENT OF ABSENTEES. The proceedings
and transactions of any meeting of Shareholders, either annual or special,
however called and noticed and wherever held, shall be as valid as though had
at a meeting duly held after regular call and notice, if a quorum is present
either in person or by proxy, and if, either before or after the meeting, each
of the persons entitled to vote, not present in person or by proxy, signs a
written waiver of notice or a consent to the holding of such meeting, or an
approval of the minutes thereof. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person objects,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened and except that attendance at a
meeting is not a waiver of any right to object to the consideration of matters
required by law or these Bylaws to be included in the notice but which was not
so included, if such objection is expressly made at the meeting, provided
however, that any person making such objection at the beginning of the meeting
or to the consideration of matters required to be but not included in the
notice may orally withdraw such objection at the meeting or thereafter waive
such objection by signing a written waiver thereof or a consent to the holding
of the meeting or the consideration of the matter or an approval of the minutes
of the meeting. Neither the business to be transacted at nor the purpose of any
annual or special meeting of Shareholders need be specified in any written
waiver of notice except that the general nature of the proposals specified in
subsections (a) through (e) of Section 4 of this Article II, shall be so
stated. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 9. ACTION WITHOUT A MEETING. Directors may be elected without a
meeting by a consent in writing, setting forth the action so taken, signed by
all of the persons who would be entitled to vote for the election of Directors,
provided that, without notice except as hereinafter set forth, a Director may
be elected at any time to fill a vacancy not filled by the Directors by the
written consent of persons holding a majority of the outstanding shares
entitled to vote for the election of Directors.
Any other action which, under any provision of the General Corporation
Law may be taken at any annual or special meeting of the Shareholders, may be
taken without a meeting, and without notice except as hereinafter set forth, if
a consent in writing, setting forth the action so taken, is signed by the
holders of outstanding shares having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted. Unless the consents
of all Shareholders entitled to vote have been solicited in writing,
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(a) Notice of any proposed Shareholder approval of, (i) a contract or
other transaction between the corporation and one or more of its Directors or
any corporation, firm or association in which one or more of its Directors has
a material financial interest or is also a Director, (ii) indemnification of an
agent of the corporation as authorized by Section 16, of Article III, of these
Bylaws, (iii) a reorganization of the corporation as defined in Section 181 of
the General Corporation Law, or (iv) the distribution of shares, obligations or
securities of any other corporation or assets other than money which is not in
accordance with the liquidation rights of preferred shares if the corporation
is in the process of winding up, without a meeting by less than unanimous
written consent, shall be given at least ten days before the consummation of
the action authorized by such approval; and
(b) Prompt notice shall be given of the taking of any other corporate
action approved by Shareholders without a meeting by less than unanimous
written consent, to those Shareholders entitled to vote who have not consented
in writing. Such notices shall be given in the manner and shall be deemed to
have been given as provided in Section 4 of Article II of these Bylaws.
Unless, as provided in Section 1 of Article V of these Bylaws, the
Board of Directors has fixed a record date for the determination of
Shareholders entitled to notice of and to give such written consent, the record
date for such determination shall be the day on which the first written consent
is given. All such written consents shall be filed with the Secretary of the
corporation.
Any Shareholder giving a written consent, or the Shareholder's
proxyholders, or a transferee of the shares or a personal representative of the
Shareholder or their respective proxyholders, may revoke the consent by a
writing received by the corporation prior to the time that written consents of
the number of shares required to authorize the proposed action have been filed
with the Secretary of the corporation, but may not do so thereafter. Such
revocation is effective upon its receipt by the Secretary of the corporation.
Section 10. PROXIES. Every person entitled to vote or execute consents
shall have the right to do so either in person or by an agent or agents
authorized by a written proxy executed by such person or the duly authorized
agent of such person and filed with the Secretary of the corporation, or the
persons appointed as inspectors of election or such other person as may be
designated by the Board of Directors to receive proxies; provided, that no such
proxy shall be valid after the expiration of eleven months from the date of its
execution, unless the Shareholder executing it specifies therein the length of
time for which such proxy is to continue in force. Every proxy duly executed
continues in full force and effect until revoked by the person executing it
prior to the vote pursuant thereto. Except as otherwise provided by law, such
revocation may be effected by
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attendance at the meeting and voting in person by the person executing the
proxy or by a writing stating that the proxy is revoked or by a proxy bearing a
later date executed by the person executing the proxy and filed with the
Secretary of the corporation or the persons appointed as inspectors of election
or such other persons as may be designated by the Board of Directors to receive
proxies.
Section 11. INSPECTORS OF ELECTION. In advance of any meeting of
Shareholders, the Board of Directors may appoint any persons as inspectors of
election to act at such meeting or any adjournment thereof. If inspectors of
election are not so appointed, or if any persons so appointed fail to appear or
refuse to act, the chairman of any such meeting may, and on the request of any
Shareholder or his proxy shall, make such appointment at the meeting. The
number of inspectors shall be either one or three. If appointed at a meeting on
the request of one or more Shareholders or proxies, the majority of shares
represented in person or by proxy shall determine whether one or three
inspectors are to be appointed.
The inspectors of election shall determine the number of shares
outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum and the authenticity, validity and effect of
proxies, receive votes, ballots or consents, hear and determine all challenges
and questions in any way arising in connection with the right to vote, count
and tabulate all votes or consents, determine when the polls shall close,
determine the result and do such acts as may be proper to conduct the election
or vote with fairness to all Shareholders. In the determination of the validity
and effect of proxies the dates contained on the forms of proxy shall
presumptively determine the order of execution of the proxies, regardless of
the postmark dates on the envelopes in which they are mailed.
The inspectors of election shall perform their duties impartially, in
good faith, to the best of their ability and as expeditiously as is practical.
If there are three inspectors of election, the decision, act or certificate of
a majority is effective in all respects as the decision, act or certificate of
all. Any report or certificate made by the inspectors of election is prima
facie evidence of the facts stated therein.
Article III.
DIRECTORS
Section 1. POWERS. Subject to the General Corporation Law and any
limitations in the Articles of Incorporation relating to action requiring
Shareholder approval, and subject to the duties of Directors as prescribed by
the Bylaws, the business and affairs of the corporation shall be managed and
all corporate powers shall be exercised by or under the direction of the Board
of Directors.
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Section 2. NUMBER AND QUALIFICATIONS OF DIRECTORS. The authorized
number of Directors shall be three (3). After the issuance of shares, this
number may be changed only by an amendment to the Articles of Incorporation or
the Bylaws approved by the affirmative vote or written consent of a majority of
the outstanding shares entitled to vote. If the number of Directors is or
becomes five or more, an amendment of the Articles of Incorporation or the
Bylaws reducing the authorized number of Directors to less than five cannot be
adopted if the votes cast against its adoption at a meeting or the shares not
consenting in the case of action by written consent are equal to more than 16-
2/3 percent of the outstanding shares entitled to vote. Directors need not be
residents of the State of California nor Shareholders of the corporation.
Section 3. ELECTION AND TERM OF OFFICE. The Directors shall be elected
at each annual meeting of Shareholders, but if any such annual meeting is not
held or the Directors are not elected at any annual meeting, the Directors may
be elected at any special meeting of Shareholders held for that purpose, or at
the next annual meeting of Shareholders held thereafter. Each Director shall
hold office at the pleasure of the Shareholders until the next annual meeting
of Shareholders and until his successor has been elected and qualified or until
his earlier resignation or removal or his office has been declared vacant in
the manner provided in these Bylaws.
Section 4. RESIGNATION AND REMOVAL OF DIRECTORS. Any Director may
resign effective upon giving written notice to the Chief Executive Officer, the
President, the Secretary or the Board of Directors of the corporation, unless
the notice specifies a later time for the effectiveness of such resignation, in
which case such resignation shall be effective at the time specified. Unless
such resignation specifies otherwise, its acceptance by the corporation shall
not be necessary to make it effective. The Board of Directors may declare
vacant the office of a Director who has been declared of unsound mind by an
order of court or convicted of a felony. Any or all of the Directors may be
removed without cause if such removal is approved by the affirmative vote of a
majority of the outstanding shares entitled to vote provided that no Director
may be removed (unless the entire Board is removed) when the votes cast against
removal (or, if such action is taken by written consent, the shares held by
persons not consenting in writing to such removal) would be sufficient to elect
such Director if voted cumulatively at an election at which the same total
number of votes were cast (or, if such action is taken by written consent, all
shares entitled to vote were voted) and the entire number of Directors
authorized at the time of the Director's most recent election were then being
elected. No reduction of the authorized number of Directors shall have the
effect of removing any Director before his term of office expires.
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Section 5. VACANCIES. Vacancies on the Board of Directors (except
vacancies created by the removal of a Director) may be filled by a majority of
the Directors then in office, whether or not less than a quorum, or by a sole
remaining Director, and each Director elected in this manner shall hold office
until the next annual meeting of Shareholders and until a successor has been
elected and qualified or until his earlier resignation or removal or his office
has been declared vacant in the manner provided in these Bylaws. A vacancy or
vacancies on the Board of Directors shall exist on the death, resignation or
removal of any Director, or if the Board declares vacant the office of a
Director if he is declared of unsound mind by an order of court or is convicted
of a felony, or if the authorized number of Directors is increased, or if the
Shareholders fail to elect the full authorized number of Directors to be voted
for at any Shareholders meeting at which an election of Directors is held. The
Shareholders may elect a Director at any time to fill any vacancy not filled by
the Directors or which occurs by reason of the removal of a Director. Any such
election by written consent of Shareholders shall require the consent of a
majority of the outstanding shares entitled to vote. If the resignation of a
Director states that it is to be effective at a future time, a successor may be
elected to take office when the resignation becomes effective.
Section 6. PLACE OF MEETINGS. Regular and special meetings of the Board
of Directors shall be held at any place within or without the State of
California which has been designated in the notice or written waiver of notice
of the meeting, or, if not stated in the notice or waiver of notice or there is
no notice, designated by resolution of the Board of Directors or, either before
or after the meeting, consented to in writing by all members of the Board who
were not present at the meeting. If the place of a regular or special meeting
is not designated in the notice or waiver of notice or fixed by a resolution of
the Board or consented to in writing by all members of the Board not present at
the meeting, it shall be held at the corporation's principal executive office.
Section 7. REGULAR MEETINGS. Immediately following each annual
Shareholders' meeting, the Board of Directors shall hold a regular meeting to
elect officers and transact other business. Such meeting shall be held at the
same place as the annual meeting or such other place as shall be fixed by the
Board of Directors. Other regular meetings of the Board of Directors shall be
held at such times and places as are fixed by the Board. Call and notice of
regular meetings of the Board of Directors shall not be required and is hereby
dispensed with.
Section 8. SPECIAL MEETINGS. Special meetings of the Board of Directors
for any purpose or purposes may be called at any time by the Chief Executive
Officer, the President, any Vice President, the Secretary, any Assistant
Secretary or any two Directors. Notice of the time and place of special
meetings shall be delivered personally or by telephone or telegraph or
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sent to the Directors by mail. In case notice is given by mail or telegram, it
shall be sent, charges prepaid, addressed to the Director at his address
appearing on the corporate records, or if it is not on these records or is not
readily ascertainable, at the place where the meetings of the Directors are
regularly held. If notice is delivered personally or given by telephone or
telegraph, it shall be given or delivered to the telegraph office at least 48
hours before the meeting. If notice is mailed, it shall be deposited in the
United States mail at least four days before the meeting. Such mailing,
telegraphing or delivery, personally or by telephone, as provided in this
Section, shall be due, legal and personal notice to such Director.
Section 9. QUORUM. A majority of the authorized number of Directors
shall constitute a quorum of the Board for the transaction of business, except
to adjourn a meeting under Section 11. Every act or decision done or made by a
majority of the Directors present at a meeting duly held at which a quorum is
present is the act of the Board of Directors, unless the vote of a greater
number or the same number after disqualifying one or more Directors from
voting, is required by law, the Articles of Incorporation or these Bylaws. A
meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of Directors, provided that any action
taken is approved by at least a majority of the required quorum for such
meeting.
Section 10. WAIVER OF NOTICE OR CONSENT. The transactions of any
meeting of the Board of Directors, however called and noticed or wherever held,
shall be as valid as though had at a meeting duly held after regular call and
notice, if a quorum is present and if, either before or after the meeting, each
of the Directors not present or who, though present, has prior to the meeting
or at its commencement, protested the lack of proper notice to him, signs a
written waiver of notice, or a consent to holding the meeting, or an approval
of the minutes of the meeting. All such waivers, consents and approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting. A notice or waiver of notice need not specify the purpose of any
regular or special meeting of the Board of Directors. Notice of a meeting need
not be given to any Director who signs a waiver of notice, whether before or
after the meeting, or who attends the meeting without protesting, prior to or
at its commencement, the lack of notice to such Director.
Section 11. ADJOURNMENT. A majority of the Directors present, whether
or not a quorum is present, may adjourn any meeting to another time and place.
If the meeting is adjourned for more than 24 hours, notice of the adjournment
to another time or place shall be given prior to the time of the adjourned
meeting to the Directors who were not present at the time of the adjournment.
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Section 12. MEETINGS BY CONFERENCE TELEPHONE. Members of the Board of
Directors may participate in a meeting through use of conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear one another. Participation by Directors in a meeting in the
manner provided in this Section constitutes presence in person at such meeting.
Section 13. ACTION WITHOUT A MEETING. Any action required or permitted
to be taken by the Board of Directors may be taken without a meeting, if all
members of the Board shall individually or collectively consent in writing to
such action. Such written consent or consents shall be filed with the minutes
of the proceedings of the Board. Such action by written consent shall have the
same force and effect as a unanimous vote of such Directors.
Section 14. FEES AND COMPENSATION. Directors and members of committees
shall receive neither compensation for their services as Directors or members
of committees or reimbursement for their expenses incurred as Directors or
members of committees unless these payments are fixed by resolution of the
Board. Directors and members of committees may receive compensation and
reimbursement for their expenses incurred as officers, agents or employees of
or for other services performed for the corporation as approved by the Chief
Executive Officer without authorization, approval or ratification by the Board.
Section 15. COMMITTEES. The Board of Directors may, at its discretion,
by resolution adopted by a majority of the authorized number of Directors,
designate one or more committees, each of which shall be composed of two or
more Directors, to serve at the pleasure of the Board. The Board may designate
one or more Directors as alternate members of any committee, who may replace
any absent member at any meeting of the committee. The Board may delegate to
any such committee, to the extent provided in such resolution, any of the
Board's powers and authority in the management of the corporation's business
and affairs, except with respect to:
(a) the approval of any action for which the General Corporation Law or
the Articles of Incorporation also requires approval by the Shareholders;
(b) the filling of vacancies on the Board of Directors or any
committee;
(c) the fixing of compensation of Directors for serving on the Board or
on any committee;
(d) the amendment or repeal of Bylaws or the adoption of new Bylaws;
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(e) the amendment or repeal of any resolution of the Board which by its
express terms is not so amendable or repealable;
(f) a distribution to the Shareholders of the corporation, except at a
rate or in a periodic amount or within a price range determined by the Board;
(g) the authorization of the issuance of shares; and
(h) the appointment of other committees of the Board or the members
thereof.
The Board may prescribe appropriate rules, not inconsistent with these
Bylaws, by which proceedings of any such committee shall be conducted. The
provisions of these Bylaws relating to the calling of meetings of the Board,
notice of meetings of the Board and waiver of such notice, adjournments of
meetings of the Board, written consents to Board meetings and approval of
minutes, action by the Board by consent in writing without a meeting, the place
of holding such meetings, meetings by conference telephone or similar
communications equipment, the quorum for such meetings, the vote required at
such meetings and the withdrawal of Directors after commencement of a meeting
shall apply to committees of the Board and action by such committees. In
addition, any member of the committee designated by the Board as the chairman
or as secretary of the committee or any two members of a committee may call
meetings of the committee. Regular meetings of any committee may be held
without notice if the time and place of such meetings are fixed by the Board of
Directors or the committee.
Section 16. INDEMNIFICATION OF CORPORATE AGENTS.
(a) For the purposes of this section, "agent" means any person who is
or was a Director, officer, employee or other agent of this corporation, or is
or was serving at the request of this corporation as a Director, officer,
employee or agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise, or was a Director, officer, employee
or agent of a foreign or domestic corporation which was a predecessor
corporation of this corporation or of another enterprise at the request of such
predecessor corporation; "proceeding" means any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative; and "expenses" includes without limitation, attorneys' fees and
any expenses of establishing a right to indemnification under subdivision (d)
or paragraph (3) of subdivision (e).
(b) This corporation shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any proceeding (other
than an action by or in the right of this corporation to procure a judgment in
its favor) by reason of the fact that such person is or was an agent of this
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corporation, against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with such proceeding if such
person acted in good faith and in a manner such person reasonably believed to
be in the best interests of this corporation and, in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of such person was
unlawful. The termination of any proceeding by judgment, order, settlement,
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 the person reasonably believed to be in the best interests of this
corporation or that the person had reasonable cause to believe that the
person's conduct was unlawful.
(c) This corporation shall have the power to indemnify any person who
was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action by or in the right of this corporation to procure a
judgment in its favor by reason of the fact that such person is or was an agent
of this corporation, against expenses actually and reasonably incurred by such
person in connection with the defense or settlement of such action if such
person acted in good faith, in a manner such person believed to be in the best
interests of this corporation and its Shareholders.
No indemnification shall be made under this subdivision for any of the
following:
(1) In respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to this corporation in the
performance of such person's duty to this corporation and its
Shareholders, unless and only to the extent that the court in which
such proceeding is or was pending shall determine upon application
that, in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for the expenses and then
only to the extent that the court shall determine.
(2) Of amounts paid in settling or otherwise disposing of a
pending action without court approval.
(3) Of expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval.
(d) To the extent that an agent of this corporation has been successful
on the merits in defense of any proceeding referred to in subdivision (b) or
(c) or in defense of any claim, issue or matter therein, the agent shall be
indemnified against expenses actually and reasonably incurred by the agent in
connection therewith.
(e) Except as provided in subdivision (d), any indemnification under
this Section shall be made by this corporation only if authorized in the
specific case, upon a
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determination that indemnification of the agent is proper in the circumstances
because the agent has met the applicable standard of conduct set forth in
subdivision (b) or (c), by any of the following:
(1) A majority vote of a quorum consisting of Directors who are
not parties to such proceeding.
(2) If such a quorum of Directors is not obtainable, by
independent legal counsel in a written opinion.
(3) Approval of the Shareholders (Section 153 of the California
Corporations Code) with the shares owned by the person to be
indemnified not being entitled to vote thereon.
(4) The court in which such proceeding is or was pending upon
application made by this corporation or the agent or the attorney or
other person rendering services in connection with the defense, whether
or not such application by the agent, attorney or other person is
opposed by this corporation.
(f) Expenses incurred in defending any proceeding may be advanced by
this corporation prior to the final disposition of such proceeding upon receipt
of an undertaking by or on behalf of the agent to repay such amount if it shall
be determined ultimately that the agent is not entitled to be indemnified as
authorized in this Section.
(g) The indemnification provided by this section shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaw, agreement, vote of Shareholders or disinterested
Directors or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office, to the extent that such
additional rights to indemnification are authorized in the articles of this
corporation. The rights to indemnity hereunder shall continue as to a person
who has ceased to be a Director, officer, employee, or agent and shall inure to
the benefit of the heirs, executors and administrators of the person. Nothing
contained in this Section shall affect any right to indemnification to which
persons other than such Directors and officers of this corporation may be
entitled by contract or otherwise.
(h) No indemnification or advance shall be made under this Section,
except as provided in subdivision (d) or paragraph (3) of subdivision (e), in
any circumstance where it appears:
(1) That it would be inconsistent with a provision of the
articles, Bylaws, a resolution of the Shareholders or an agreement in
effect at the time of the accrual of the alleged cause of action
asserted in the proceeding in which the expenses were incurred or other
amounts were paid, which prohibits or otherwise limits indemnification.
14.
<PAGE> 15
(2) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
(i) This corporation shall have the power to purchase and maintain
insurance on behalf of any agent of the corporation against any liability
asserted against or incurred by the agent in such capacity or arising out of
the agent's status as such whether or not this corporation would have the power
to indemnify the agent against such liability under the provisions of this
section. The fact that a corporation owns all or a portion of the shares of the
company issuing a policy of insurance shall not render this subdivision
inapplicable if either of the following conditions are satisfied: (1) if
authorized in the articles of the corporation, any policy issued is limited to
the extent provided by subdivision (d) of Section 204 of the California
Corporations Code; or (2) (A) the company issuing the insurance policy is
organized, licensed, and operated in a manner that complies with the insurance
laws and regulations applicable to its jurisdiction of organization, (B) the
company issuing the policy provides procedures for processing claims that do
not permit that company to be subject to the direct control of the corporation
that purchased that policy, and (C) the policy issued provides for some manner
of risk sharing between the issuer and purchaser of the policy, on one hand,
and some unaffiliated person or persons, on the other, such as by providing for
more than one unaffiliated owner of the company issuing the policy or by
providing that a portion of the coverage furnished will be obtained from some
unaffiliated insurer or reinsurers.
Article IV
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a Chief
Executive Officer, a President, a Secretary and a Chief Financial Officer. The
corporation may also have, at the discretion of the Board of Directors, one or
more Vice Presidents, one or more Assistant Secretaries, one or more Assistant
Treasurers and such other officers as may be appointed in accordance with the
provisions of Section 3 of this Article IV. Any two or more offices may be held
by the same person.
Section 2. ELECTIONS. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 3 or
Section 5 of this Article IV, shall be chosen annually by the Board of
Directors, and each such officer shall serve at the pleasure of the Board of
Directors until the regular meeting of the Board of Directors following the
annual meeting of Shareholders and until his successor is elected and qualified
or until his earlier resignation or removal.
Section 3. OTHER OFFICERS. The Board of Directors may appoint, and may
empower the Chief Executive Officer to appoint, such other officers as the
business of the corporation may
15.
<PAGE> 16
require, each of whom shall hold office for such period, have such authority
and perform such duties as are provided in the Bylaws or as the Board of
Directors may from time to time determine.
Section 4. REMOVAL AND RESIGNATION. Any officer may be removed with or
without cause either by the Board of Directors or, except for an officer chosen
by the Board, by any officer upon whom the power of removal may be conferred by
the Board (subject, in each case, to the rights, if any, of an officer under
any contract of employment). Any officer may resign at any time upon written
notice to the corporation (without prejudice however, to the rights, if any, of
the corporation under any contract to which the officer is a party). Any such
resignation shall take effect upon receipt of such notice or at any later time
specified therein. If the resignation is effective at a future time, a
successor may be elected to take office when the resignation becomes effective.
Unless a resignation specifies otherwise, its acceptance by the corporation
shall not be necessary to make it effective.
Section 5. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in a
manner prescribed in the Bylaws for regular appointments to the office.
Section 6. CHIEF EXECUTIVE OFFICER, The Chief Executive Officer shall
be the corporation's general manager and shall, subject to the control of the
Board of Directors, have general supervision, direction and control of the
business, affairs and officers of the corporation. Unless otherwise determined
by the Board of Directors, he shall preside as chairman at all meetings of the
Shareholders. He shall have the general powers and duties of management usually
vested in the office of chief executive officer of a corporation; shall have
any other powers and duties that are prescribed by the Board of Directors or
the Bylaws; and shall be primarily responsible for carrying out all orders and
resolutions of the Board of Directors.
Section 7. PRESIDENT. The President, subject to the control of the
Chief Executive Officer, shall have general and active management of the
business of the corporation and shall see that all orders and resolutions of
the Board of Directors are carried into effect. He shall execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereon shall be
expressly delegated by the Board of Directors to some other officer or agent of
the corporation.
Section 8. VICE PRESIDENTS. In the absence or disability of the
President, the Vice Presidents in order of their rank as fixed by the Board of
Directors, or if not ranked, the Vice President designated by the Board of
Directors, or if
16.
<PAGE> 17
there has been no such designation, the Vice President designated by the
President, shall perform all the duties of the President, and when so acting,
shall have all the powers of, and be subject to all the restrictions on, the
President. Each Vice President shall have any of the powers and perform any
other duties that from time to time may be prescribed for him by the Board of
Directors, the Bylaws, the Chief Executive Officer or the President.
Section 9. SECRETARY. The Secretary shall keep or cause to be kept a
book of minutes of all meetings and actions by written consent of all
Directors, Shareholders and committees of the Board of Directors. The minutes
of each meeting shall state the time and place that it was held and such other
information as shall be necessary to determine whether the meeting was held in
accordance with law and these Bylaws and the actions taken thereat. The
Secretary shall keep or cause to be kept at the corporation's principal
executive office, or at the office of its transfer agent or registrar, a record
of the Shareholders of the corporation, giving the names and addresses of all
Shareholders and the number and class of shares held by each. The Secretary
shall give, or cause to be given, notice of all meetings of Shareholders,
Directors and committees required to be given under these Bylaws or by law,
shall keep or cause the keeping of the corporate seal in safe custody and shall
have any other powers and perform any other duties that are prescribed by the
Board of Directors, the Bylaws, the Chief Executive Officer or the President.
If the Secretary refuses or fails to give notice of any meeting lawfully
called, any other officer of the corporation may give notice of such meetings.
The Assistant Secretary, or if there be more than one, any Assistant Secretary,
may perform any or all of the duties and exercise any or all of the powers of
the Secretary unless prohibited from doing so by the Board of Directors, the
Chief Executive Officer, the President or the Secretary, and shall have such
other powers and perform any other duties as are prescribed for him by the
Board of Directors, the Chief Executive Officer or the President.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
books and records of account. The Chief Financial Officer shall cause all money
and other valuables in the name and to the credit of the corporation to be
deposited at the depositories designated by the Board of Directors or any
person authorized by the Board of Directors to designate such depositories. He
shall render to the Chief Executive Officer, President and Board of Directors,
when any of them request it, an account of all his transactions as Chief
Financial Officer and of the financial condition of the corporation; and shall
have any other powers and perform any other duties that are prescribed by the
Board of Directors, the Bylaws, the Chief Executive Officer or the President.
The Assistant Treasurer, or if there be more than one, any Assistant Treasurer,
may perform any or all of the duties and exercise any or all of the powers of
the Chief Financial Officer unless
17.
<PAGE> 18
prohibited from doing so by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer, and shall have such
other powers and perform any other duties as are prescribed for him by the
Board of Directors, the Chief Executive Officer, the President or the Chief
Financial Officer.
Article V
MISCELLANEOUS
Section 1. RECORD DATE. The Board of Directors may fix a time in the
future as a record date for the determination of the Shareholders entitled to
notice of and to vote at any meeting of Shareholders or entitled to give
consent to corporate action in writing without a meeting, to receive any
report, to receive payment of any dividend or other distribution, or allotment
of any rights, or to exercise rights in respect to any change, conversion, or
exchange of shares or any other lawful action. The record date so fixed shall
be not more than sixty days nor less than ten days prior to the date of such
meeting, nor more than sixty days prior to any other action for the purposes of
which it is fixed. When a record date is so fixed, only Shareholders of record
on that date are entitled to notice of and to vote at any such meeting, to give
consent without a meeting, to receive any report, to receive a dividend,
distribution, or allotment of rights, or to exercise the rights, as the case
may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided in the Articles
of Incorporation or Bylaws.
Section 2. INSPECTION OF CORPORATE RECORDS. The books of account,
record of Shareholders, and minutes of proceedings of the Shareholders and the
Board and committees of the Board of this corporation shall be open to
inspection upon the written demand on the corporation of any Shareholder or
holder of a voting trust certificate at any time during usual business hours,
for a purpose reasonably related to such holder's interests as a Shareholder or
as the holder of such voting trust certificate. Such inspection by a
Shareholder or holder of a voting trust certificate may be made in person or by
agent or attorney, and the right of inspection includes the right to copy and
make extracts.
A Shareholder or Shareholders holding at least five percent in the
aggregate of the outstanding voting shares of the corporation or who hold at
least one percent of such voting shares and have filed a Schedule 14B with the
United States Securities and Exchange Commission relating to the election of
Directors of the corporation shall have (in person or by agent or attorney) the
absolute right to inspect and copy the record of Shareholders' names and
addresses and shareholdings during usual business hours upon five business
days' prior written demand upon the corporation and to obtain from the transfer
agent for the corporation, upon written demand and upon the tender of its usual
charges, a list of the Shareholders' names and addresses, who are
18.
<PAGE> 19
entitled to vote for the election of Directors, and their shareholdings, as of
the most recent record date for which it has been compiled or as of a date
specified by the Shareholder subsequent to the date of demand. The list shall
be made available on or before the later of five business days after the demand
is received or the date specified therein as the date as of which the list is
to be compiled.
Every Director shall have the absolute right at any reasonable time to
inspect and copy all books, records and documents of every kind and to inspect
the physical properties of this corporation and any subsidiary of this
corporation. Such inspection by a Director may be made in person or by agent or
attorney and the right of inspection includes the right to copy and make
extracts.
Section 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
payment of money, notes or other evidences of indebtedness, issued in the name
of or payable to the corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by
resolution of the Board of Directors. The Board of Directors may authorize one
or more officers of the corporation to designate the person or persons
authorized to sign such documents and the manner in which such documents shall
be signed.
Section 4. ANNUAL AND OTHER REPORTS. The statutory requirement that the
Board of Directors cause an annual report to be sent to Shareholders is hereby
waived.
A Shareholder or Shareholders holding at least five percent of the
outstanding shares of any class of the corporation may make a written request
to the corporation for an income statement of the corporation for the
three-month, six-month or nine-month period of the current fiscal year ended
more than thirty days prior to the date of the request and a balance sheet of
the corporation as of the end of such period. In addition, if no annual report
for the last fiscal year has been sent to Shareholders, a Shareholder or
Shareholders holding at least five percent of the outstanding shares of any
class of the corporation may make a written request to the corporation for an
annual report for the last fiscal year, which annual report shall contain a
balance sheet as of the end of such fiscal year and an income statement and
statement of changes in financial position for such fiscal year, accompanied by
any report thereon of independent accountants or, if there is no such report,
the certificate of an authorized officer of the corporation that such
statements were prepared without audit from the books and records of the
corporation. The statements shall be delivered or mailed to the person making
the request within thirty days thereafter. A copy of such statements shall be
kept on file in the principal executive office of the corporation for twelve
months and they shall be exhibited at all reasonable times to any Shareholder
demanding an examination of them or a copy shall be mailed to such Shareholder.
19.
<PAGE> 20
The corporation shall, upon the written request of any Shareholder,
mail to the Shareholder a copy of the last annual, semiannual or quarterly
income statement which it has prepared and a balance sheet as of the end of the
period.
The quarterly income statements and balance sheets referred to in this
Section shall be accompanied by the report thereon, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that such financial statements were prepared without
audit from the books and records of the corporation.
Unless otherwise determined by the Board of Directors or the Chief
Executive Officer, the Chief Financial Officer and any Assistant Treasurer are
each authorized officers of the corporation to execute the certificate that the
annual report and quarterly income statements and balance sheets referred to in
this section were prepared without audit from the books and records of the
corporation.
Any report sent to the Shareholders shall be given personally or by
mail or other means of written communication, charges prepaid, addressed to
such Shareholder at the address of such Shareholder appearing on the books of
the corporation or given by such Shareholder to the corporation for the purpose
of notice or set forth in the written request of the Shareholder as provided in
this Section. If any report addressed to the Shareholder at the address of such
Shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the report to the Shareholder
at such address, all future reports shall be deemed to have been duly given
without further mailing if the same shall be available for the Shareholder upon
written demand of the Shareholder at the principal executive office of the
corporation for a period of one year from the date of the giving of the report
to all other Shareholders. If no address appears on the books of the
corporation or is given by the Shareholder to the corporation for the purpose
of notice or is set forth in the written request of the Shareholder as provided
in this Section, such report shall be deemed to have been given to such
Shareholder if sent by mail or other means of written communication addressed
to the place where the principal executive office of the corporation is
located, or if published at least once in a newspaper of general circulation in
the county in which the principal executive office is located. Any such report
shall be deemed to have been given at the time when delivered personally or
deposited in the mail or sent by other means of written communication. An
affidavit of mailing of any such report in accordance with the foregoing
provisions, executed by the Secretary, Assistant Secretary or any transfer
agent of the corporation shall be prima facie evidence of the giving of the
report.
20.
<PAGE> 21
Section 5. CONTRACTS, ETC., HOW EXECUTED. The Board of Directors,
except as the Bylaws or Articles of Incorporation otherwise provide, may
authorize any officer or officers, agent or agents, to enter into any contract
or execute any instrument in the name of and on behalf of the corporation, and
such authority may be general or confined to specific instances.
Section 6. CERTIFICATE FOR SHARES. Every holder of shares in the
corporation shall be entitled to have a certificate or certificates signed in
the name of the corporation by the Chief Executive Officer or the President or
a Vice President and by the Chief Financial Officer or an Assistant Treasurer
or the Secretary or any Assistant Secretary, certifying the number of shares
and the class or series of shares owned by the Shareholder. Any or all of the
signatures on the certificate may be facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue.
Any such certificate shall also contain such legend or other statement
as may be required by Section 418 of the General Corporation Law, the Corporate
Securities Law of 1968, and any agreement between the corporation and the
issuee thereof, and may contain such legend or other statement as may be
required by any other applicable law or regulation or agreement.
Certificates for shares may be issued prior to full payment thereof,
under such restrictions and for such purposes, as the Board of Directors or the
Bylaws may provide; provided, however, that any such certificates so issued
prior to full payment shall state the total amount of the consideration to be
paid therefor and the amount paid thereon.
No new certificate for shares shall be issued in place of any
certificate theretofore issued unless the latter is surrendered and cancelled
at the same time; provided, however, that a new certificate may be issued
without the surrender and cancellation of the old certificate if the
certificate theretofore issued is alleged to have been lost, stolen or
destroyed. In case of any such allegedly lost, stolen or destroyed certificate,
the corporation may require the owner thereof or the legal representative of
such owner to give the corporation a bond (or other adequate security)
sufficient to indemnify it against any claim that may be made against it
(including any expense or liability) on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
Section 7. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. Unless the
Board of Directors shall otherwise determine, the Chief Executive Officer, the
President, any Vice
21.
<PAGE> 22
President, the Secretary and any Assistant Secretary of this corporation are
each authorized to vote, represent and exercise on behalf of this corporation
all rights incident to any and all shares of any other corporation or
corporations standing in the name of this corporation. The authority herein
granted to such officers to vote or represent on behalf of this corporation any
and all shares held by this corporation in any other corporation or
corporations may be exercised either by such officers in person or by any
person authorized so to do by proxy or power of attorney or other document duly
executed by any such officer.
Section 8. INSPECTION OF BYLAWS. The corporation shall keep in its
principal executive office in California, or if its principal executive office
is not in California, at its principal business office in California, the
original or a copy of the Bylaws as amended to date, which shall be open to
inspection by the Shareholders at all reasonable times during office hours. If
the corporation has no office in California, it shall upon the written request
of any Shareholder, furnish him a copy of the Bylaws as amended to date.
Section 9. SEAL. The corporation shall have a common seal, and shall
have inscribed thereon the name of the corporation, the date of its
incorporation, and the words "INCORPORATED" and "CALIFORNIA".
Section 10. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise
requires, the general provisions, rules of construction and definitions
contained in the General Corporation Law shall govern the construction of these
Bylaws. Without limiting the generality of the foregoing, the masculine gender
includes the feminine and neuter, the singular number includes the plural and
the plural number includes the singular, and the term "Person" includes a
corporation as well as a natural person.
Article VI
AMENDMENTS
Section 1. POWER OF SHAREHOLDERS. New Bylaws may be adopted or these
Bylaws may be amended or repealed by the affirmative vote of a majority of the
outstanding shares entitled to vote, or by the written assent of Shareholders
entitled to vote such shares, except as otherwise provided by law or by the
Articles of Incorporation.
Section 2. POWER OF DIRECTORS. Subject to the right of Shareholders as
provided in Section 1 of this Article VI to adopt, amend or repeal Bylaws,
Bylaws other than a bylaw or amendment thereof changing the authorized number
of Directors may be adopted, amended or repealed by the Board of Directors.
22.
<PAGE> 23
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of HTAC
Investments, Inc., a California corporation; and
(2) That the foregoing Bylaws, comprising 22 pages, constitute the
Bylaws of such corporation as duly adopted by action of the Board of Directors
of the corporation duly taken on May 18, 1990.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
seal of such corporation this 18th day of May, 1990.
/s/ Gary S. Peck
-----------------------------
Gary S. Peck
Secretary
23.
<PAGE> 1
EXHIBIT 5.1
[VINSON & ELKINS LETTERHEAD]
August 21, 1995
HarCor Energy, Inc.
Five Post Oak Park
4400 Post Oak Parkway, Suite 2220
Houston, Texas 77027
Gentlemen:
We have acted as counsel for HarCor Energy, Inc., a Delaware
corporation (the "Company") in connection with the proposed issuance of up to
$65,000,000 aggregate principal amount of its 14 7/8% Senior Secured Notes due
2002, Series B (the "Exchange Notes") which are to be offered by the Company
(the "Exchange Offer") to the holders of the Company's 14 7/8% Senior Secured
Notes due 2002, Series A (the "Series A Notes") in exchange for a like
principal amount of their Series A Notes. The Series A Notes have been, and the
Exchange Notes are proposed to be, issued under an Indenture dated as of July
24, 1995 (the "Indenture"), between the Company and Texas Commerce Bank
National Association, as Trustee (the "Trustee"). The Exchange Notes and the
Series A Notes are guaranteed (the "Guarantees") by the Company's two wholly-
owned subsidiaries, Warrior, Inc., a Texas corporation ("Warrior"), and HTAC
Investments, Inc., a California corporation ("HTAC").
In this connection, we have examined the certificates representing the
Series A Notes and the Exchange Notes, the Guarantees, and the Indenture and
copies, certified or otherwise identified to our satisfaction, of such
corporate documents and records of the Company, including its Certificate of
Incorporation and Bylaws, as we have deemed necessary for the purposes of this
opinion. We have also examined certain certificates and facsimile transmissions
of or from public officials and officers of the Company and the Trustee and we
have relied on such certificates and facsimile transmissions with respect to
the factual matters contained therein which we have not independently
established.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware.
<PAGE> 2
HarCor Energy, Inc.
Page 2
August 21, 1995
2. The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding instrument of the
Company enforceable against it in accordance with its terms.
3. The Exchange Notes have been duly authorized by the Company,
and, when authenticated and delivered as provided in the Indenture and issued
by the Company upon receipt by the Company and cancellation of a like principal
amount of Series A Notes in accordance with the terms of the Exchange Offer,
will constitute legal, valid and binding obligations of the Company entitled to
the benefits of the Indenture.
4. The Guarantees of the Exchange Notes have been duly
authorized, executed and delivered by Warrior and HTAC and when issued by
Warrior and HTAC in accordance with the terms of the Exchange Offer will
constitute legal, valid and binding obligations of Warrior and HTAC entitled to
the benefits of the Indenture.
The opinions expressed in paragraphs 2, 3 and 4 above are qualified to
the extent that the enforceability of the Exchange Notes, the Guarantees of the
Exchange Notes and the Indenture may be limited by bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or other laws or decisions
relating to or affecting the enforcement of creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
In rendering the foregoing opinion we have assumed that the Indenture
has been duly authorized, executed and delivered by the Trustee, and the
signatures on all documents examined by us are genuine.
The opinions expressed herein relate solely to, are based solely on
and are limited exclusively to the laws of the State of Texas, the General
Corporation Law of the State of Delaware and United States federal law.
This opinion is rendered as of the effective date of the Registration
Statement on Form S-4 to which this opinion is an Exhibit. We hereby consent to
the use of our name in the Registration Statement under the heading "Legal
Matters".
Very truly yours,
VINSON & ELKINS L.L.P.
<PAGE> 1
EXHIBIT 8.1
[VINSON & ELKINS LETTERHEAD]
August 21, 1995
HarCor Energy, Inc.
Five Post Oak Park
4400 Post Oak Parkway, Suite 2200
Houston, Texas 77027
Gentlemen:
We have acted as tax counsel to HarCor Energy, Inc. (the "Company") in
connection with the Registration Statement on Form S-4 of the Company filed
with the Securities and Exchange commission on August 21, 1995 (the
"Registration Statement") and hereby confirm to you that in our opinion, the
statements as to federal income tax consequences set forth under the heading
"Certain Federal Income Tax Considerations" in the Prospectus relating thereto
are complete and accurate in all material respects.
We hereby consent to the filing with the Securities and Exchange
Commission of this letter as an exhibit to the Registration Statement and the
reference to us in the Prospectus under the heading "Legal Matters". In giving
such consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act of 1933.
Very truly yours,
VINSON & ELKINS L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PETROLEUM CONSULTANTS
As independent petroleum consultants, we hereby consent to (i) the reference to
our firm under the caption "Reserves" in Notes to Consolidated Financial
Statements (Note #18) of the Registration Statement on Form S-4 (the
"Registration Statement") of HarCor Energy, Inc. and (ii) the summarization of
our reports entitled "Evaluation of Oil and Gas Reserves to the Interests of
HarCor Energy, Inc. in Various Properties, Effective January 1, 1992, Pursuant
to the Requirements of the Securities and Exchange Commission, Williamson
Project 1.7834" dated February 27, 1992 and "Evaluation of Oil and Gas Reserves
to the Interests of HarCor Energy, Inc. in Various Properties, Effective January
1, 1993, Pursuant to the Requirements of the Securities and Exchange Commission,
Williamson Project 2.7976" dated March 5, 1993 in the Registration Statement to
be filed with the Securities and Exchange Commission on or about August 18,
1995.
WILLIAMSON PETROLEUM CONSULTANTS, INC.
Houston, Texas
August 17, 1995
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PETROLEUM CONSULTANTS
As independent petroleum engineers, we hereby consent to (i) the reference
to our Firm in the Registration Statement on Form S-4 (the "Registration
Statement") of HarCor Energy, Inc.; (ii) the summarization of our reports
concerning our estimate of the net proved reserves as of December 31, 1993
attributable to the interests owned by HarCor Energy, Inc. (HarCor) in the
"Non-Bakersfield" properties and the interests to be acquired by HarCor in the
"Bakersfield" properties, dated March 15, 1994 and May 11, 1994, respectively,
in the Registration Statement, and (iii) the inclusion of such letter reports as
exhibits to the Registration Statement.
RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
Houston, Texas
August , 1995
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
As independent petroleum engineers, we hereby consent to (i) the reference
to our Firm in the Registration Statement on Form S-4 (the "Registration
Statement") of HarCor Energy, Inc., (ii) the summarization of our reports
entitled "Trust Company of the West/HarCor Energy, Inc., Estimated Reserves and
Revenues for Certain Properties as of January 1, 1993"; and "Trust Company of
the West/HarCor Energy, Inc., Estimated Future Reserves and Revenues for Certain
Properties as of January 1, 1994"; and "HarCor Energy, Inc., Estimated Future
Reserves and Revenues for Certain Properties as of January 1, 1995" in the
Registration Statement, and (iii) the inclusion of a letter prepared by us as an
exhibit to the Registration Statement.
HUDDLESTON & CO., INC.
Houston, Texas
August 21, 1995
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
and to all references to our Firm included in or made a part of this
registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
August 18, 1995
<PAGE> 1
EXHIBIT 23.5
The Board of Directors
HarCor Energy Inc.
We consent to the use of our reports included herein and to the reference to our
firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick Thorne
Chartered Accountants
Calgary, Canada
August 18, 1995
<PAGE> 1
EXHIBIT 25.1
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)(2)_____ [Not applicable]
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
Not applicable
(Jurisdiction of incorporation
or organization if not a U.S. national bank)
74-0800980
(I.R.S. Employer Identification No.)
712 Main Street, Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
Jeffrey B. Reitman, 712 Main Street,
Houston, Texas 77002 713/216-5887
(Name, address and telephone number of agent for service)
HarCor Energy, Inc.
(Exact name of obligor as specified in its charter)
Delaware 33-0234380
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
Five Post Oak Park, 440 Post Oak
Parkway, Suite 2220, Houston, Texas 77027
(Address of principal executive offices) (Zip Code)
14 7/8% Series B Senior Secured Notes due 2002
(Title of the indenture securities)
1
<PAGE> 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.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of The Federal Reserve System, Washington,
D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
As of August 11, 1995, the obligor is not an affiliate of the
trustee.
(See Note on Page 7)
Item 3. Voting securities of the trustee.
Furnish the following information as to each class of voting
securities of the trustee:
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
2
<PAGE> 3
(a) Title of the securities outstanding under each such other
indenture.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
(b) A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of Section 310(b)(1)
of the Act arises as a result of the trusteeship under any such other
indenture, including a statement as to how the indenture securities will
rank as compared with the securities issued under such other indenture.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 5. Interlocking directorates and similar relationships with the obligor
or underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee or representative
of the obligor or of any underwriter for the obligor, identify each such person
having any such connection and state the nature of each such connection.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 6. Voting securities of the trustee owned by the obligor or its
officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor:
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 7. Voting securities of the trustee owned by underwriters or their
officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner and executive officer of each such underwriter.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
3
<PAGE> 4
Item 8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor
owned beneficially or held as collateral security for obligations in default by
the trustee.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 10. Ownership or holdings by the trustee of voting securities of certain
affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person:
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 11. Ownership or holdings by the trustee of any securities of a person
owning 50 percent or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the trustee.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 12. Indebtedness of the obligor to the trustee.
4
<PAGE> 5
Except as noted in the instructions, if the obligor is indebted to
the trustee, furnish the following information:
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 13. Defaults by the obligor.
(a) State whether there is or has been a default with respect to
the securities under this indenture. Explain the nature of any such default.
As of August 11, 1995, there is not, nor has there been, a
default with respect to the securities under this indenture.
(See Note on Page 7)
(b) If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
As of August 11, 1995, there has not been a default under any
such indenture or series. (See Note on Page 7)
Item 14. Affiliations with the underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 15. Foreign trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not applicable.
Item 16. List of exhibits.
List below all exhibits filed as a part of this statement of
eligibility.
5
<PAGE> 6
<TABLE>
<S> <C>
*1 - A copy of the articles of association of the trustee
as now in effect.
**2 - A copy of the certificate of authority of the trustee
to commence business.
***3 - A copy of the authorization of the trustee to
exercise corporate trust powers.
*4 - A copy of the existing by-laws of the trustee.
5 - Not applicable.
****6 - The consent of the trustee required by Section 321(b)
of the Act.
****7 - A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority.
8 - Not applicable.
9 - Not applicable.
- ----------------------------------------
* Incorporated by reference to the exhibit bearing the same
designation and previously filed by Texas Commerce Bank
National Association with Form T-1 with respect to the Form
S-4, File No. 33-90582.
** Incorporated by reference to the exhibit bearing the same
designation and previously filed by Texas Commerce Bank
National Association with Form T-1 with respect to the Form
S-3, File No. 33-42814.
*** Incorporated by reference to the exhibit bearing the same
designation and previously filed by Texas Commerce Bank
National Association with Form T-1 with respect to the Form
S-11, File No. 33-25132.
**** Incorporated by reference to the exhibit bearing the same
designation and previously filed by Texas Commerce Bank
National Association with Form T-1 with respect to the Form
S-3, File No. 33-61223.
</TABLE>
6
<PAGE> 7
------------------
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Items 2 and 13, the
answers to said Items are based on incomplete information. Such Items may,
however, be considered as correct unless amended by an amendment to this Form
T-1. In completing this Form T-1, the trustee has relied upon information
furnished to it by the obligor and will rely on information to be furnished by
the obligor and the trustee disclaims responsibility for the accuracy or
completeness of such information.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, Texas Commerce Bank National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Houston
and State of Texas, on the 15th day of August, 1995.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By:/s/ LEAH FOSHEE
------------------------
Leah Foshee
Assistant Vice President
and Trust Officer
7
<PAGE> 1
EXHIBIT 25.2
FORM T-2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF AN
INDIVIDUAL DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)_____ [Not applicable]
STEVEN R. PATTERSON
(Name of trustee)
Omitted Pursuant to Special Instructions for Completing Form T-2
(Social Security Number)
712 Main Street, Houston, Texas 77002
(Business address: street, city, state and zip code)
HarCor Energy, Inc.
(Exact name of obligor as specified in its charter)
Delaware 33-0234380
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
Five Post Oak Park, 440 Post Oak
Parkway, Suite 2220, Houston, Texas 77027
(Address of principal executive offices) (Zip Code)
14 7/8% Series B Senior Secured Notes due 2002
(Title of the indenture securities)
1
<PAGE> 2
Item 1. Affiliations with obligor.
If the obligor is an affiliate of the trustee, describe such
affiliation.
The obligor is not an affiliate of the trustee.
Item 2. Trusteeships under other indentures.
If the trustee is trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, file a copy of each such indenture
as an exhibit and furnish the following information:
(a) Title of the securities outstanding under each other indenture.
(b) A brief statement of the facts relied upon by the trustee as a
basis for the claim that no conflicting interest within the
meaning of Section 310(b)(1) of the Act arises as a result of
the trusteeship under such other indenture, including a
statement as to how the indenture securities will rank as
compared with the securities issued under such other indenture.
The trustee is not a trustee under such other indenture.
Item 3. Certain relationships between the trustee and the obligor or an
underwriter.
If the trustee is a director, officer, partner, employee, appointee
or representative of the obligor or of any underwriter for the obligor, state
the nature of each such connection.
Not applicable by virtue of Form T-2 General Instruction B and the
response to Item 9.
Item 4. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor
owned beneficially by the trustee or held by the trustee as collateral security
for obligations in default:
As of August 14, 1995.
Not applicable by virtue of Form T-2 General Instruction B and the
response to Item 9.
2
<PAGE> 3
Item 5. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee:
As of August 14, 1995.
Not applicable by virtue of Form T-2 General Instruction B and the
response to Item 9.
Item 6. Holdings by the trustee of voting securities of certain affiliates or
principal holders of voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person:
As of August 14, 1995.
Not applicable by virtue of Form T-2 General Instruction B and the
response to Item 9.
Item 7. Holdings by the trustee of any securities of a person owning 50
percent or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the trustee:
As of August 14, 1995.
Not applicable by virtue of Form T-2 General Instruction B and the
response to Item 9.
Item 8. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to
the trustee, furnish the following information:
As of August 14, 1995.
3
<PAGE> 4
Not applicable by virtue of Form T-2 General Instruction B and the
response to Item 9.
Item 9. Defaults by the obligor.
(a) State whether there is or has been any default with respect to
the securities under this indenture. Explain the nature of any
such default.
There is not, nor has there been, a default with respect to the
securities under this indenture. (See Note on Page 5)
(b) If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or
participation in other securities, of the obligor are
outstanding, or is trustee for more than one outstanding series
of securities, state whether there has been a default under any
such indenture or series, identify the indenture or series
affected, and explain the nature of any such default.
There has not been a default under any such indenture or
series. (See note on Page 5)
Item 10. Affiliations with the underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable by virtue of Form T-2 General Instruction B and the
response to Item 9.
Item 11. List of exhibits.
List below all exhibits filed as a part of this statement of
eligibility.
Not applicable by virtue of Form T-2 General Instruction B and the
response to Item 9.
4
<PAGE> 5
NOTE
Inasmuch as this Form T-2 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Items 2 and 9, the
answers to said Items are based on incomplete information. Such Items may,
however, be considered as correct unless amended by an amendment to this Form
T-2. In completing this Form T-2, the trustee has relied upon information
furnished to it by the obligor and will rely on information to be furnished by
the obligor and the trustee disclaims responsibility for the accuracy or
completeness of such information.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, I,
Steven R. Patterson, have signed this statement of eligibility in the City of
New York and State of New York, on the 15th day of August, 1995.
/s/ STEVEN R. PATTERSON
-----------------------------------------------
STEVEN R. PATTERSON
5
<PAGE> 1
EXHIBIT 99.3
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 1995, UNLESS EXTENDED.
FORM OF LETTER OF TRANSMITTAL
TO ACCOMPANY 14 7/8% SENIOR SECURED NOTES DUE 2002,
SERIES A (CUSIP NO. 411628AA8) OF
HARCOR ENERGY, INC.
(a Delaware corporation)
TENDERED PURSUANT TO THE PROSPECTUS DATED AUGUST , 1995
(PLEASE READ THE INSTRUCTIONS CAREFULLY)
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE HEREOF) AND ALL OTHER
DOCUMENTS AND INSTRUMENTS REQUIRED HEREBY SHOULD BE SENT OR DELIVERED TO THE
EXCHANGE AGENT AT THE ADDRESS SET FORTH BELOW. TENDERS MUST BE RECEIVED BY THE
EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON , 1995,
UNLESS THE EXCHANGE OFFER IS EXTENDED (THE "EXPIRATION DATE").
The Exchange Agent
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
<TABLE>
<S> <C>
Facsimile Transmission Telephone Number: Address for Mailing:
(214) 672-5744 P.O. Box 2320
Dallas, Texas 75221-2320
Attn: Frank Ivins
Confirm by Telephone: Address for Couriers and Hand Deliveries:
(800) 275-2048 One Main Place
1201 Main St.
Dallas, Texas 75202
Attn: Frank Ivins
</TABLE>
------------------------
DELIVERY TO ANY ADDRESS OTHER THAN AS SET FORTH
HEREIN WILL NOT CONSTITUTE VALID DELIVERY.
------------------------
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL
IS COMPLETED.
This Letter of Transmittal is to be completed by holders of Series A Notes
(as defined below) only (a) if Series A Notes are to be forwarded herewith or
(b) if delivery of such Series A Notes is to be made by book-entry transfer to
the account maintained by the Exchange Agent at The Depository Trust Company
(DTC) pursuant to the procedures set forth under the caption "The Exchange
Offer -- How to Tender" in the Prospectus (as defined below). DELIVERY OF
DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
Holders of Series A Notes who cannot deliver their Series A Notes or
deliver confirmation of the book-entry transfer of their Series A Notes into the
Exchange Agent's account at DTC and all other documents required hereby to the
Exchange Agent on or prior to the Expiration Date must tender their Series A
Notes pursuant to the guaranteed delivery procedure set forth under the caption
"The Exchange Offer -- How to Tender" in the Prospectus. See Instruction 2
herein.
<PAGE> 2
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
/ /CHECK HERE IF TENDERED SERIES A NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution _____________________________________________
DTC Account Number ________________________________________________________
Transaction Code Number ___________________________________________________
/ /CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED SERIES A NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
Name of Registered Owner(s) _______________________________________________
Date of Execution of Notice of Guaranteed Delivery ________________________
Name of Institution which Guaranteed delivery _____________________________
If Delivered By Book-Entry Transfer:
Name of Tendering Institution ________________________________________
DTC Account Number ___________________________________________________
Transaction Code Number ______________________________________________
/ /CHECK HERE IF TENDERING BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED SERIES A
NOTES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH
ABOVE.
<TABLE>
<CAPTION>
DESCRIPTION OF SERIES A NOTES TENDERED
------------------------------------------------------------------------------------------------------------------------------
SERIES A NOTES TENDERED
IF BLANK, PRINT NAME AND ADDRESS OF REGISTERED HOLDER. (ATTACH ADDITIONAL LIST IF NECESSARY)
------------------------------------------------------------------------------------------------------------------------------
SERIES A AGGREGATE PRINCIPAL PRINCIPAL AMOUNT
NOTES AMOUNT OF OF SERIES A
NUMBER(S)* SERIES A NOTES NOTES TENDERED**
<S> <C> <C> <C>
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TOTALS:
------------------------------------------------------------------------------------------------------------------------------
* Need not be completed by Book-Entry Holders.
** The aggregate principal amount of all Series A Notes held shall be deemed tendered unless a lesser principal amount is
specified in this column. See Instruction 4.
</TABLE>
-2-
<PAGE> 3
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Pursuant to the terms and subject to the conditions of the Exchange Offer
(as described below) of HarCor Energy, Inc., a Delaware corporation (the
"Company"), to holders of the Company's 14 7/8% Senior Secured Notes due 2002,
Series A issued pursuant to the Offering Memorandum dated July 17, 1995 (the
"Series A Notes"), as set forth in the Prospectus dated August , 1995 (the
"Prospectus") and this Letter of Transmittal (which, together with the
Prospectus, constitute the Exchange Offer), the signer of this Letter of
Transmittal (the "Holder") hereby accepts the Exchange Offer and tenders the
Series A Notes listed on this Letter of Transmittal in exchange for a like
principal amount of 14 7/8% Senior Secured Notes due 2002, Series B (the
"Exchange Notes"). The Exchange Notes are substantially identical to the Series
A Notes except that the resale of the Exchange Notes will not be subject to the
restrictions of Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act"), and the Exchange Notes will not be subject to certain
interest rate increase provisions which were applicable to the Series A Notes in
certain circumstances relating to the timing of the Exchange Offer. The Holder
hereby acknowledges receipt of the Prospectus. Capitalized terms used but not
defined herein have the respective meanings given such terms in the Prospectus.
Accordingly, subject to, and effective upon, acceptance for exchange of the
Series A Notes tendered herewith in accordance with the terms and conditions of
the Exchange Offer, the Holder hereby sells, assigns and transfers to the
Company all right, title and interest in and to all of the Series A Notes that
are being tendered for exchange hereby, and hereby irrevocably constitutes and
appoints the Exchange Agent the true and lawful agent and attorney-in-fact of
the Holder with respect to such securities, with full power of substitution
(such power of attorney being deemed to be an irrevocable power coupled with an
interest), to (i) deliver Series A Notes tendered hereby or transfer ownership
of such securities on the account books maintained by DTC together, in either
such case, with the accompanying evidences of transfer and authority, to the
Company upon the receipt by the Exchange Agent, as the Holder's agent, of the
consideration therefor pursuant to the Exchange Offer, and (ii) receive all
benefits and otherwise exercise all rights of beneficial ownership of such
Series A Notes.
THE HOLDER HEREBY REPRESENTS AND WARRANTS THAT THE HOLDER HAS FULL POWER
AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE SERIES A NOTES
TENDERED HEREBY AND TO ACQUIRE THE EXCHANGE NOTES ISSUABLE UPON THE EXCHANGE OF
SUCH TENDERED SECURITIES, THAT THE COMPANY WILL ACQUIRE GOOD AND UNENCUMBERED
TITLE TO SUCH TENDERED SERIES A NOTES, FREE AND CLEAR OF ALL LIENS,
RESTRICTIONS, CHARGES AND ENCUMBRANCES, AND THE SERIES A NOTES TENDERED HEREBY
ARE NOT SUBJECT TO ANY ADVERSE CLAIM OR ENCUMBRANCE WHEN THE SAME ARE ACCEPTED
BY THE COMPANY. THE HOLDER WILL, UPON REQUEST, EXECUTE AND DELIVER ANY
ADDITIONAL DOCUMENTS DEEMED BY THE COMPANY OR THE EXCHANGE AGENT TO BE NECESSARY
OR DESIRABLE TO COMPLETE THE EXCHANGE, SALE, ASSIGNMENT AND TRANSFER OF THE
SERIES A NOTES TENDERED HEREBY.
All authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the Holder, and any
obligation of the Holder hereunder shall be binding upon the heirs, personal
representatives, successors and assigns of the Holder. Except as stated in the
Prospectus, this tender is irrevocable.
A tender of Series A Notes pursuant to the procedures described in the
Prospectus and in the instructions hereto will constitute the Holder's
acceptance of the terms and conditions of the Exchange Offer and a binding
agreement between the tendering Holder of Series A Notes and the Company upon
the terms and subject to the conditions of the Exchange Offer. The Holder
recognizes that, under certain circumstances set forth in the Prospectus, the
Company may not be required to accept any of the Series A Notes tendered for
exchange hereby. The Holder hereby directs that the Exchange Notes and/or any
Series A Notes representing any principal amount of such securities not
exchanged be issued in the name of the Holder. The Holder understands that
Holders who tender Series A Notes by book-entry transfer ("Book-Entry Holders")
will receive their Exchange Notes and any principal amount of Series A Notes not
exchanged will be returned to such Book-Entry Holder by crediting in the name of
such Book-Entry Holder the account maintained by DTC. The Holder recognizes that
the Company has no obligation to transfer any Series A Notes from the name(s) of
the registered holder(s) thereof.
BY TENDERING SERIES A NOTES AND EXECUTING THIS LETTER OF TRANSMITTAL, THE
HOLDER IS DEEMED TO REPRESENT AND AGREE, AND HEREBY REPRESENTS AND AGREES, THAT
(I) IT IS ACQUIRING EXCHANGE NOTES ISSUABLE IN EXCHANGE THEREFOR IN THE ORDINARY
COURSE OF ITS BUSINESS, (II) UNLESS IT IS A BROKER-DEALER REFERRED TO IN THE
NEXT SENTENCE, IT IS NOT ENGAGING AND DOES NOT INTEND TO ENGAGE IN THE
DISTRIBUTION OF THE EXCHANGE NOTES, (III) AT THE TIME OF CONSUMMATION OF THE
EXCHANGE OFFER THE HOLDER WILL HAVE NO ARRANGEMENT OR UNDERSTANDING WITH ANY
PERSON TO PARTICIPATE IN THE DISTRIBUTION OF THE EXCHANGE NOTES IN VIOLATION OF
THE PROVISIONS OF THE SECURITIES ACT, (IV) THE HOLDER IS NOT AN AFFILIATE OF ANY
OF THE ISSUERS WITHIN THE MEANING OF RULE 405 UNDER THE SECURITIES ACT AND (V)
IF IT PARTICIPATES IN THE EXCHANGE OFFER FOR THE PURPOSE OF DISTRIBUTING THE
EXCHANGE NOTES IT MUST COMPLY WITH THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY RESALE OF THE EXCHANGE
NOTES. EACH HOLDER WHO IS A PARTICIPATING BROKER-DEALER
-3-
<PAGE> 4
(AS DEFINED IN THE PROSPECTUS) HOLDING SERIES A NOTES ACQUIRED FOR ITS OWN
ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES THAT WILL
RECEIVE EXCHANGE NOTES IN EXCHANGE FOR SUCH SERIES A NOTES PURSUANT TO THE
EXCHANGE OFFER FURTHER REPRESENTS AND AGREES THAT IT WILL DELIVER A PROSPECTUS
(WHICH MAY BE THE PROSPECTUS) IN CONNECTION WITH ANY RESALE OF SUCH EXCHANGE
NOTES DURING THE PERIOD REQUIRED BY THE SECURITIES ACT. BY ACKNOWLEDGING THAT IT
WILL DELIVER AND BY DELIVERING A PROSPECTUS, A PARTICIPATING BROKER-DEALER WILL
NOT BE DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER" WITHIN THE MEANING OF THE
SECURITIES ACT.
-4-
<PAGE> 5
- --------------------------------------------------------------------------------
HOLDER SIGN HERE
X
- --------------------------------------------------------------------------------
X
- --------------------------------------------------------------------------------
(Signature(s) of Owner(s))
Dated , 1995 Holder's Telephone Number
---------------------- ---------------
(Must be signed by the registered holder(s) exactly as name(s) appear(s) on
Series A Notes. If signature is by an attorney, executor, administrator,
trustee, guardian or others acting in a fiduciary capacity, please set forth
full title and see Instruction 5.)
Signature(s)
Guaranteed
(See Instruction 1)
- --------------------------------------------------------------------------------
(Firm -- Please Print)
- --------------------------------------------------------------------------------
(Authorized Signature)
- --------------------------------------------------------------------------------
(Date)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 4, 5 and 6)
To be completed ONLY by registered holders and ONLY if Exchange Notes or
Series A Notes representing any principal amount of such securities not
exchanged are to be sent to the Holder at an address other than that shown
above.
Mail Exchange Notes (or Series A Notes) to:
- --------------------------------------------------------------------------------
(Name -- Please Print)
- --------------------------------------------------------------------------------
(Address)
- --------------------------------------------------------------------------------
(Include Zip Code)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
FOR PARTICIPATING BROKER-DEALERS ONLY
(See Instruction 11)
Please send
- ------------ copies of the Prospectus and any supplements or amendments thereto
to the following address:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
- --------------------------------------------------------------------------------
-5-
<PAGE> 6
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. GUARANTEE OF SIGNATURES. Signatures on Letters of Transmittal need not
be guaranteed, except as provided in this Instruction 1. In cases where Series A
Notes are tendered for exchange by a registered holder of Series A Notes who has
completed the box entitled "Special Delivery Instructions" on the Letter of
Transmittal, signatures on Letters of Transmittal (or facsimiles thereof) must
be guaranteed by a commercial bank or trust company having an office or
correspondent in the United States or a firm which is a member of a registered
national securities exchange or a member of the National Association of
Securities Dealers, Inc. (an "Eligible Institution").
2. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES. In order to
participate in the Exchange Offer and receive Exchange Notes, a holder must
properly complete and duly execute (with signatures guaranteed if required by
Instruction 1) the Letter of Transmittal (or a facsimile thereof) and mail or
deliver it, together with the Series A Notes to be tendered for exchange (or the
Exchange Agent must receive a timely confirmation of a book-entry transfer of
such Series A Notes into the Exchange Agent's account at DTC as described in the
Prospectus) and any other required documents, to the Exchange Agent. The
Exchange Agent must receive the foregoing documents and instruments on or prior
to the Expiration Date. DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE
DELIVERY TO THE EXCHANGE AGENT.
If a holder desires to tender Series A Notes pursuant to the Exchange Offer
and such holder's Series A Notes are not immediately available, or if the
procedure for book-entry transfer cannot be completed on a timely basis, or such
holder cannot deliver the Series A Notes and all other required documents to the
Exchange Agent prior to the Expiration Date, such Series A Notes may be tendered
if all of the following guaranteed delivery procedures are complied with: (i)
such tenders are made by or through an Eligible Institution; (ii) a properly
completed and duly executed Notice of Guaranteed Delivery, in substantially the
form provided by the Company, is received by the Exchange Agent on or prior to
the Expiration Date; and (iii) the Series A Notes, in proper form (or transfer
for confirmation of book-entry transfer of such Series A Notes into the Exchange
Agent's account at DTC as described in the Prospectus), together with a properly
completed and duly executed Letter of Transmittal and all other documents
required by this Letter of Transmittal, are received by the Exchange Agent
within five New York Stock Exchange, Inc. trading days after the date of
execution of such Notice of Guaranteed Delivery, all as provided under the
caption "The Exchange Offer -- How to Tender" in the Prospectus.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptability of Series A Notes tendered will be determined by the
Company in its sole discretion, and such determinations will be final and
binding. The Company reserves the right to reject any and all tenders determined
by it not to be in proper form or otherwise not valid or the acceptance for
exchange of which may, in the opinion of the Company's counsel, be unlawful or
to waive any irregularities or conditions. The Company's interpretation of the
terms and conditions of the Exchange Offer (including the Letter of Transmittal
and Instructions thereto) will also be final and binding. The Company and the
Exchange Agent are not under any duty to give notification of any irregularities
or defects and shall not incur any liability for failure to give any such
notification. Tenders will not be deemed to have been made until such
irregularities or defects have been cured or waived. Any tender (including the
Letter of Transmittal and Series A Notes) that is not properly completed and
executed, and as to which irregularities or defects are not cured or waived,
will be returned by the Exchange Agent to the tendering holder promptly after
the Expiration Date (or, in the case of Series A Notes delivered by book-entry
transfer within DTC, the tendered Series A Notes will be credited to the account
maintained within DTC by the participant).
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE SERIES A NOTES
AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC, IS AT THE
ELECTION AND RISK OF THE TENDERING HOLDER AND, EXCEPT AS OTHERWISE PROVIDED IN
THIS INSTRUCTION 2, THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED
BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL, WITH RETURN
RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
No alternative, conditional or contingent tenders will be accepted. All
tendering holders, by execution of this Letter of Transmittal or facsimile
hereof, waive any rights to receive any notice of the acceptance of their
tender.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the Series
A Note numbers and the principal amount of Series A Notes should be listed on a
separate signed schedule attached hereto.
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<PAGE> 7
4. PARTIAL TENDERS. If less than all of the principal amount represented by
any Series A Note submitted is to be tendered, the principal amount of the
Series A Notes which are to be tendered should be stated in the box entitled
"Principal Amount of Series A Notes Tendered." New Series A Notes for the
remaining principal amount of the old Series A Note(s) will either be sent to
the registered holder of the Series A Note(s) tendered as soon as practicable
after the tender has been accepted or credited to the holder's account in
accordance with appropriate book-entry procedures. The aggregate principal
amount of all Series A Notes listed are deemed to have been tendered unless
otherwise indicated. Partial tenders of all Series A Notes may be made only if
(i) the principal amount tendered is equal to $1,000 or an integral multiple
thereof; and (ii) the remaining untendered portion of such Series A Note is in a
principal amount of $250,000, or any integral multiple of $1,000 in excess of
such amount.
5. SIGNATURES ON LETTER OF TRANSMITTAL. This Letter of Transmittal must be
signed by the registered holder of the Series A Note(s) tendered hereby and if
the Series A Notes are registered the signature must correspond exactly with the
name as written on the face of the Series A Note(s) with alteration, enlargement
or any change whatsoever.
If the Series A Notes tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If this Letter of Transmittal is 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 proper evidence satisfactory to the Company of their
authority to so act must be submitted.
6. DELIVERY OF EXCHANGE NOTES. Delivery of Exchange Notes will be made
promptly after the Expiration Date for all Series A Notes properly tendered and
accepted for exchange by the Company. The Exchange Notes of registered holders
will be issued in the name of the registered holder(s) of the Series A Notes and
will either be mailed to such holder(s) or credited to such holder's account in
accordance with appropriate book-entry procedures. In the case of tenders by
Notice of Guaranteed Delivery, Exchange Notes will not be delivered until the
Letter of Transmittal, the Series A Notes relating to such Notice of Guaranteed
Delivery (or a timely confirmation of a book-entry transfer of such Series A
Notes into the Exchange Agent's account of DTC) and all other required documents
have been received by the Exchange Agent.
7. SECURITY TRANSFER TAXES. The Company will pay all security transfer
taxes, if any, applicable to the exchange of Series A Notes tendered and
accepted pursuant to the Exchange Offer.
8. Backup Federal Income Tax Withholding and Substitute Form W9. Under the
federal income tax laws, payments that may be made by the Company on account of
Exchange Notes issued pursuant to the Exchange Offer may be subject to backup
withholding at the rate of 31%. In order to avoid such backup withholding, each
tendering holder should complete and sign the Substitute Form W-9 included in
this Letter of Transmittal and either (a) provide the correct taxpayer
identification number ("TIN") and certify, under penalties of perjury, that the
TIN provided is correct and that (i) the holder has not been notified by the
Internal Revenue Service (the "IRS") that the holder is subject to backup
withholding as a result of failure to report all interest or dividends or (ii)
the IRS has notified the holder that the holder is no longer subject to backup
withholding; or (b) provide an adequate basis for exemption. If the tendering
holder has not been issued a TIN and has applied for one, or intends to apply
for one in the near future, such holder should write "Applied For" in the space
provided for the TIN in Part I of the Substitute Form W-9, sign and date the
Substitute Form W-9 and sign the Certificate of Payee Awaiting Taxpayer
Identification Number. If "Applied For" is written in Part I, the Company (or
the Paying Agent under the Indenture governing the Exchange Notes) shall retain
31% of payments made to the tendering holder during the sixty day period
following the date of the Substitute Form W-9. If the holder furnishes the
Exchange Agent or the Company with its TIN within sixty days after the date of
the Substitute Form W-9, the Company (or the Paying Agent) shall remit such
amounts retained during the sixty day period to the holder and no further
amounts shall be retained or withheld from payments made to the holder
thereafter. If, however, the holder has not provided the Exchange Agent or the
Company with its TIN within such sixty day period, the Company (or the Paying
Agent) shall remit such previously retained amounts to the IRS as backup
withholding. In general, if a holder is an individual, the TIN is the Social
Security number of such individual. If the Exchange Agent or the Company are not
provided with the correct TIN, the holder may be subject to a $50 penalty
imposed by the IRS. Certain holders (including, among others, all corporations
and certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, such holder must submit a
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<PAGE> 8
statement (generally, IRS Form W-8), signed under penalties of perjury,
attesting to that individual's exempt status. Such statements can be obtained
from the Exchange Agent.
Failure to complete the Substitute Form W-9 will not, by itself, cause
Notes to be deemed invalidly tendered, but may require the Company (or the
Paying Agent) to withhold 31% of the amount of any payment made on account of
the Exchange Notes. Backup withholding is not an additional federal income tax.
Rather, the federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the IRS.
9. WAIVER OF CONDITIONS. Subject to limitations set forth in the
Prospectus, the conditions of the Exchange Offer may be waived by the Company,
in whole or in part, at any time or from time to time, in the Company's sole
discretion in the case of any Series A Notes tendered.
10. LOST, DESTROYED OR STOLEN NOTES. If any Series A Note has been lost,
stolen, mutilated or destroyed, the holder should promptly notify the Trustee,
Texas Commerce Bank National Association, of such fact in writing, or call (800)
275-2048. The holder will then be directed as to the steps that must be taken in
order to replace the Series A Note. The Letter of Transmittal and related
documents cannot be processed until the procedures for replacing lost, stolen,
mutilated or destroyed Series A Notes have been followed.
11. REQUEST FOR ADDITIONAL COPIES. Questions and requests for additional
copies of the Prospectus and this Letter of Transmittal may be obtained from the
Exchange Agent at the address and telephone number set forth in the Prospectus.
12. PARTICIPATING BROKER-DEALERS. Each Holder which is a Participating
Broker-Dealer must advise the Exchange Agent as to the number of copies of the
Prospectus (including supplements and amendments thereto) it will require in
order to satisfy the prospectus delivery requirements for resales of Exchange
Notes which are exchanged for Series A Notes acquired by it for its own account
as a result of market-making or other trading activities.
(DO NOT WRITE IN SPACE BELOW)
<TABLE>
___________________________________________________________________________________________________________
CERTIFICATE SURRENDERED EXISTING NOTES TENDERED EXISTING NOTES ACCEPTED
<S> <C> <C>
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
Dated Received _______________ Accepted by ___________________ Checked by ______________________
Delivery Prepared by _________ Checked by ____________________ Date ____________________________
</TABLE>
IMPORTANT TAX INFORMATION
Under federal income tax laws, a holder whose tendered Series A Notes are
accepted for payment is required to provide the Exchange Agent (as payor) with
such holder's correct TIN on Substitute Form W-9 below or otherwise establish a
basis for exemption from backup withholding. If such holder is an individual,
the TIN is his social security number. If the Exchange Agent is not provided
with the correct TIN, a $50 penalty may be imposed by the Internal Revenue
Service.
Certain holders (including, among others, all corporations and certain
foreign persons) are not subject to these backup withholding and reporting
requirements. Exempt holders should indicate their exempt status on Substitute
Form W-9. A foreign person may qualify as an exempt recipient by submitting to
the Exchange Agent a properly completed Internal Revenue Service Form W-8,
signed under penalties of perjury, attesting to that holder's exempt status. A
Form W-8 can be obtained from the Exchange Agent.
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<PAGE> 9
If backup withholding applies, the Exchange Agent is required to withhold
20% of any payments made to the holder or other payee. Backup withholding is not
an additional federal income tax. Rather, the federal income tax liability of
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to the Exchange
Offer, the holder is required to provide the Exchange Agent with either: (i) the
holder's correct TIN by completing the form below, certifying that the TIN
provided on Substitute Form W-9 is correct (or that such holder is awaiting a
TIN) and that (A) the holder has been notified by the Internal Revenue Service
that the holder is subject to backup withholding as a result of failure to
report all interest or dividends or (B) the Internal Revenue Service has
notified the holder that the holder is no longer subject to backup withholding,
or (ii) an adequate basis for exemption.
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