<PAGE> 1
As filed with the Securities and Exchange Commission on April 2, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HARCOR ENERGY, INC.
(Name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 1330 33-0234380
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
4400 POST OAK PARKWAY, SUITE 2220
HOUSTON, TEXAS 77027
(713) 961-1804
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
GARY S. PECK
VICE PRESIDENT-FINANCE
4400 POST OAK PARKWAY, SUITE 2220
HOUSTON, TEXAS 77027
(713) 961-1804
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
HARCOR ENERGY, INC. 1994 STOCK OPTION PLAN
STOCK OPTION AGREEMENT BETWEEN HARCOR ENERGY, INC.
AND MARK G. HARRINGTON
(Full title of the plan)
Copy to:
MICHAEL P. FINCH
VINSON & ELKINS L.L.P.
2300 FIRST CITY TOWER
1001 FANNIN STREET
HOUSTON, TEXAS 77002-6760
(713) 758-2128
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
============================================================================================================
Proposed Proposed
Title of each class of Amount to be maximum offering maximum aggregate Amount of
securities to be registered registered(1) price per share offering price(2) registration fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.10 . . . . . 850,000 $ (2) $ 3,722,250 $ 1,284.00
============================================================================================================
</TABLE>
(1) Includes 800,000 shares subject to the 1994 Stock Option Plan and 50,000
shares subject to the Stock Option Agreement with Mark G. Harrington.
(2) In accordance with Rule 457(h), the aggregate offering price of 260,000
shares of Common Stock registered hereby is based upon the price at which
outstanding options granted may be exercised for such Common Stock. With
respect to the remaining 590,000 shares of Common Stock, the aggregate
offering price is estimated, solely for purposes of calculating the
registration fee, in accordance with Rule 457(h) on the basis of the price
of securities of the same class, as determined in accordance with Rule
457(c), using the average of the high and low prices reported on the
National Association of Securities Dealers, Inc. Automated Quotation System
of the Common Stock on March 27, 1996.
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<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following document which has been filed with the Securities and
Exchange Commission (the "Commission") by HarCor Energy, Inc., a Delaware
corporation (the "Company"), is incorporated herein by reference and made a
part hereof:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the effective date of this Registration Statement, prior
to the filing of a post-effective amendment to this Registration Statement
indicating that all securities offered hereby have been sold or deregistering
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in any document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed to
constitute a part of this Registration Statement, except as so modified or
superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. 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.
<PAGE> 3
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 advanced if it
shall ultimately be determined that such 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 shall 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
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<PAGE> 4
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 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
the 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.
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.
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<PAGE> 5
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS.
4.1 Company's Certificate of Incorporation, as amended.(1)
4.2 Company's Bylaws, as amended.(1)
4.3 HarCor Energy, Inc. 1994 Stock Option Plan and related forms
of incentive and non-statutory stock option agreements.(2)
4.4 Stock Option Agreement dated July 6, 1994, between HarCor
Energy, Inc. and Mark G. Harrington.
5. Opinion of Vinson & Elkins L.L.P. (including consent).
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ryder Scott Company Petroleum Engineers.
23.3 Consent of Huddleston & Co., Inc.
________________________________________________________________________________
(1) Filed as an exhibit to the Company's Registration Statement on
Form S-4 (No. 33-62007), and incorporated herein by reference.
(2) Filed as Exhibit A to the Company's Proxy Statement dated May 31,
1994, for the Company's 1994 Annual Meeting of Stockholders and
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(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, as amended (the "1933 Act");
(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;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the 1933
Act, 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.
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<PAGE> 6
(b) The undersigned Registrant hereby undertakes that, for the
purposes of determining any liability under the 1933 Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the Registration Statement 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.
(c) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 1933 Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the 1933 Act and will be governed by the
final adjudication of such issue.
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on the 2nd day of April, 1996.
HARCOR ENERGY, INC.
By: /s/ MARK G. HARRINGTON
Mark G. Harrington
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mark G. Harrington, Francis H. Roth and
Gary S. Peck, or any of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ MARK G. HARRINGTON Chairman of the Board April 2, 1996
Mark G. Harrington Chief Executive Officer and Director
(Principal Executive Officer)
/s/ FRANCIS H. ROTH President, Chief Operating Officer April 2, 1996
Francis H. Roth and Director
/s/ GARY S. PECK Vice President-Finance, April 2, 1996
Gary S. Peck Chief Financial Officer and Secretary
/s/ ROBERT J. CRESCI (Principal Financial and April 2, 1996
Robert J. Cresci Accounting Officer)
/s/ VINOD K. DAR Director April 2, 1996
Vinod K. Dar
_____________________________ Director
David E. K. Frischkorn, Jr.
_____________________________ Director
Ambrose K. Monell
/s/ HERBERT OAKES Director April 2, 1996
Herbert Oakes
/s/ ROBERT A. SHORE Director April 2, 1996
Robert A. Shore
</TABLE>
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<PAGE> 8
EXHIBIT INDEX
4.4 Stock Option Agreement dated July 6, 1994, between HarCor
Energy, Inc. and Mark G. Harrington.
5. Opinion of Vinson & Elkins L.L.P. (including consent).
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ryder Scott Company Petroleum Engineers.
23.3 Consent of Huddleston & Co., Inc.
<PAGE> 1
EXHIBIT 4.4
STOCK OPTION AGREEMENT
AGREEMENT made as of the 6th day of July 1994, between HARCOR ENERGY,
INC., a Delaware corporation (the "Company"), and MARK G. HARRINGTON
("Employee").
In consideration of the mutual agreements and other matters set forth
herein, the Company and Employee hereby agree as follows:
1. GRANT OF OPTION. The Company hereby irrevocably grants to
Employee the right and option ("Option") to purchase all or any part of an
aggregate of 50,000 shares of common stock, $.10 par value, of the Company
("Stock") on the terms and conditions set forth herein. This Option shall not
be treated as an incentive stock option within the meaning of section 422(b) of
the Internal Revenue Code of 1986, as amended (the "Code"),
2. PURCHASE PRICE. The purchase price of Stock purchased pursuant
to the exercise of this Option shall be $3.375 per share.
3. EXERCISE OF OPTION. Subject to the earlier expiration of this
Option as herein provided, this Option may be exercised, by written
notice to the Company at its principal executive office addressed to the
attention of its Chief Executive Officer, at any time and from time to time
after the date of grant hereof, but, except as otherwise provided below, this
Option shall not be exercisable for more than a percentage of the aggregate
number of shares offered by this Option determined by the number of full years
from the date of grant hereof to the date of such exercise, in accordance with
the following schedule:
PERCENTAGE OF SHARES
NUMBER OF FULL YEARS THAT MAY BE PURCHASED
-------------------- ---------------------
Less than 1 year 50%
After completion of the S- 100%
1 offering
This Option may be exercised only while Employee remains an employee of the
Company and will terminate and cease to be exercisable upon Employee's
termination of employment with the Company, except that:
(a) If Employee's employment with the Company terminates by
reason of disability (within the meaning of section 22(e)(3) of the
Code), this Option shall become fully vested and may be exercised in
full by Employee (or Employee's estate or the person who acquires this
Option by will or the laws of descent and distribution or otherwise by
<PAGE> 2
reason of the death of Employee) at any time during the period of one
year following such termination.
(b) If Employee dies while in the employ of the Company, this
Option shall become fully vested and Employee's estate, or the person
who acquires this Option by will or the laws of descent and
distribution or otherwise by reason of the death of Employee, may
exercise this Option in full at any time during the period of one year
following the date of Employee's death.
(c) If Employee's employment with the Company terminates for
any reason other than as described in (a) or (b) above, unless
Employee voluntarily terminates without the written consent of the
Company or is terminated for cause, this Option may be exercised by
Employee at any time during the period of three months following such
termination, or by Employee's estate (or the person who acquires this
Option by will or the laws of descent and distribution or otherwise by
reason of the death of Employee) during a period of one year following
Employee's death if Employee dies during such three-month period, but
in each case only as to the number of shares Employee was entitled to
purchase hereunder as of the date Employee's employment so terminates.
For purposes of this Agreement, "cause" shall mean Employee's gross
negligence or willful misconduct in performance of the duties of his
employment, or Employee's final conviction of a felony or of a
misdemeanor involving moral turpitude.
This Option shall not be exercisable in any event after the expiration
of five years from the date of grant hereof. Except as provided in Paragraph 5,
the purchase price of shares as to which this Option is exercised shall be paid
in full at the time of exercise (a) in cash (including check, bank draft or
money order payable to the order of the Company), or (b) by delivering to the
Company shares of Stock having a fair market value equal to the purchase price,
or (c) a combination of cash and Stock. No fraction of a share of Stock shall
be issued by the Company upon exercise of an Option or accepted by the Company
in payment of the exercise price thereof; rather, Employee shall provide a cash
payment for such amount as is necessary to effect the issuance and acceptance
of only whole shares of Stock. Unless and until a certificate or certificates
representing such shares shall have been issued by the Company to Employee,
Employee (or the person permitted to exercise this Option in the event of
Employee's death) shall not be or have any of the rights or privileges of a
stockholder of the Company with respect to shares acquirable upon an exercise
of this Option.
4. RECAPITALIZATION. The existence of this Option shall not affect
in any way the right or power of the Board or the stockholders of the Company
to make or authorize any adjustment, recapitalization, reorganization or other
change in the Company's capital structure or its business, any merger or
consolidation of the Company, any issue of debt or equity securities, the
dissolution or liquidation of the Company or any sale, lease, exchange or other
disposition of all or any part of its assets or business or any other corporate
act or proceeding.
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<PAGE> 3
(a) If, and whenever, prior to the expiration of this Option,
the Company shall effect a subdivision or consolidation of shares of
Stock or the payment of a stock dividend on Stock without receipt of
consideration by the Company, the number of shares of Stock with
respect to which this Option may thereafter be exercised (i) in the
event of an increase in the number of outstanding shares shall be
proportionately increased, and the purchase price per share shall be
proportionately reduced, and (ii) in the event of a reduction in the
number of outstanding shares shall be proportionately reduced, and the
purchase price per share shall be proportionately increased. If the
Company recapitalizes, reclassifies its capital stock, or otherwise
changes its capital structure, thereafter, upon any exercise
hereunder, Employee shall be entitled to purchase, in lieu of the
number and class of shares of Stork then covered by this Option, the
number and class of stock, securities and other property to which
Employee would have been entitled pursuant to the terms of the
recapitalization if, immediately prior to such recapitalization,
Employee had been the holder of record of the number of shares of
Stock then covered by this Option.
(b) In the event (i) the Company shall not be the surviving
entity in any merger, consolidation or other reorganization (or shall
survive only as a subsidiary of an entity other than a previously
wholly-owned subsidiary of the Company), (ii) the Company sells,
leases or exchanges or agrees to sell, lease or exchange all or
substantially all of its assets to any other person or entity (other
than a wholly-owned subsidiary of the Company), (iii) the Company is
to be dissolved and liquidated, (iv) any person or entity, including a
"group" as contemplated by Section 13(d)(3) of the Securities Exchange
Act of 1934, acquires or gains ownership or control (including,
without limitation, power to vote) of more than 50% of the outstanding
shares of the Company's voting stock (based upon voting power) or (v)
as a result of or in connection with a contested election of
directors, the persons who were directors of the Company before such
election shall cease to constitute a majority of the Board of
Directors of the Company (the "Board") (each such event is referred to
herein as a "Corporate Change"), no later than (a) ten days after the
approval by the stockholders of the Company of such merger,
consolidation, reorganization, sale, lease or exchange of assets or
dissolution or such election of directors or (b) thirty days after a
change of control of the type described in Clause (iv), the Stock
Option and Compensation Committee of the Board (the "Committee"),
acting in its sole discretion without the consent or approval of the
Employee, shall act to effect one or more of the following
alternatives: (1) accelerate the time at which this Option may be
exercised so that this Option may be exercised in full for a limited
period of time on or before a specified date (before or after such
Corporate Change) fixed by the Committee, after which specified date
the unexercised portion of this Option and all rights of Employee
hereunder shall terminate, (2) require the mandatory surrender to the
Company by Employee of some or all of the unexercised portion of this
Option (irrespective of whether this Option is then exercisable under
the provisions hereof) as of a date, before or after such Corporate
Change, specified by the Committee, in which event the Committee shall
thereupon cancel such Option and the Company shall pay to the Employee
an amount of cash per share equal to the excess, if any, of the amount
calculated in Subparagraph (c) below (the 'Change of Control Value")
of the shares subject to this Option over the exercise price under
this Option for such shares, (3) make such
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<PAGE> 4
adjustments to this Option as the Committee deems appropriate to
reflect such Corporate Change (provided, however, that the Committee
may determine in its sole discretion that no adjustment is necessary
to this Option) or (4) provide that the number and class of shares of
Stock covered by this Option shall be adjusted so that this Option
shall thereafter cover the number and class of shares of stock or
other securities or property (including, without limitation, cash) to
which the Employee would have been entitled pursuant to the terms of
the agreement of merger, consolidation or sale of assets and
dissolution if, immediately prior to such merger, consolidation or
sale of assets and dissolution, the Employee had been the holder of
record of the number of shares of Stock then covered by this Option.
(c) For the purposes of clause (2) in Subparagraph (b) above,
the "Change of Control Value" shall equal the amount determined in
clause (i), (ii) or (iii), whichever is applicable, as follows: (i)
the per share price offered to stockholders of the Company in any such
merger, consolidation, reorganization, sale of assets or dissolution
transaction, (ii) the price per share offered to stockholders of the
Company in any tender offer or exchange offer whereby a Corporate
Change takes place, or (iii) if such Corporate Change occurs other
than pursuant to a tender or exchange offer, the fair market value per
share of the shares into which this Option are exercisable, as
determined by the Committee as of the date determined by the Committee
to be the date of cancellation and surrender of this Option. In the
event that the consideration offered to stockholders of the Company in
any transaction described in this Subparagraph (c) or Subparagraph (b)
above consists of anything other than cash, the Committee shall
determine the fair cash equivalent of the portion of the consideration
offered which is other than cash.
(d) Any adjustment provided for in Subparagraph (b) above shall
be subject to any required stockholder action.
(e) Except as hereinbefore expressly provided, the issuance by
the Company of shares of stock of any class or securities convertible
into shares of stock of any class, for cash, property, labor or
services, upon direct sale, upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the
Company convertible into such shares or other securities, and in any
case whether or not for fair value, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number
of shares of Stock subject to this Option or the purchase price per
share.
5. STOCK APPRECIATION RIGHT. Upon an exercise of this Option,
Employee (or the person exercising this Option in the event of Employee's
death) may request the Company to compute an amount (the "Appreciation Amount")
equal to the excess of the aggregate fair market value of any number of the
shares of Stock with respect to which this Option is exercised over the
aggregate purchase price of such number of shares. Moreover, Employee (or such
person) may elect (subject to the consent or disapproval of the Committee of
any election to receive cash) to have the Company distribute to Employee (or
such person), in lieu of Employee's purchasing such number of shares, an amount
of cash and/or a whole number of shares of Stock (in any
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<PAGE> 5
combination thereof as Employee or such person may elect) in fair market value
equal to the Appreciation Amount. Notwithstanding anything to the contrary
herein, if Employee is then an officer, director or affiliate of the Company
who is subject to Section 16 of the Securities Exchange Act of 1934, this
Option may not be exercised prior to the expiration of six months from the date
of grant hereof (except in the event of the death or disability of Employee
prior to the expiration of such six-month period); thereafter, any exercise of
this Option or election pursuant to this Paragraph 5 wherein Employee would
receive any portion of the Appreciation Amount in cash (other than cash in lieu
of a fractional share) may be made only during a period beginning on the third
business day and ending on the twelfth business day following the date of
release by the Company for publication of quarterly and annual summary
statements of sales and earnings. Should Employee elect pursuant to this
Paragraph 5 to receive the Appreciation Amount solely in shares of Stock, the
number of shares of Stock distributable to Employee shall be the highest whole
number of shares whose value does not exceed the Appreciation Amount, and any
fractional share shall be paid in cash.
6. WITHHOLDING OF TAX. To the extent that the exercise of this
Option or the disposition of shares of Stock acquired by exercise of this
Option results in compensation income to Employee for federal or state income
tax purposes, Employee shall deliver to the Company at the time of such
exercise or disposition such amount of money or shares of Stock as the Company
may require to meet its obligation under applicable tax laws or regulations,
and, if Employee fails to do so, the Company is authorized to withhold from any
cash or Stock remuneration then or thereafter payable to Employee any tax
required to be withheld by reason of such resulting compensation income. Upon
an exercise of this Option, the Company is further authorized in its discretion
to satisfy any such withholding requirement out of any cash or shares of Stock
distributable to Employee upon such exercise.
7. STATUS OF STOCK. The Company intends to register for issuance
under the Securities Act of 1933, as amended (the "Act") the shares of Stock
acquirable upon exercise of this Option, and to keep such registration
effective throughout the period this Option is exercisable. In the absence of
such effective registration or an available exemption from registration under
the Act, issuance of shares of Stock acquirable upon exercise of this Option
will be delayed until registration of such shares is effective or an exemption
from registration under the Act is available. The Company intends to use its
best efforts to ensure that no such delay will occur. In the event exemption
from registration under the Act is available upon an exercise of this Option,
Employee (or the person permitted to exercise this Option in the event of
Employee's death or incapacity), if requested by the Company to do so, will
execute and deliver to the Company in writing an agreement containing such
provisions as the Company may require to assure compliance with applicable
securities laws.
Employee agrees that the shares of Stock which Employee may acquire by
exercising this Option will not be sold or otherwise disposed of in any manner
which would constitute a violation of any applicable securities laws, whether
federal or state. Employee also agrees (i) that the certificates representing
the shares of Stock purchased under this Option may bear such legend or legends
as the Committee deems appropriate in order to assure compliance with
applicable securities laws, (ii) that the Company may refuse to register the
transfer of the shares of Stock
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<PAGE> 6
purchased under this Option on the stock transfer records of the Company if
such proposed transfer would in the opinion of counsel satisfactory to the
Company constitute a violation of any applicable securities laws and (iii) that
the Company may give related instructions to its transfer agent, if any, to
stop registration of the transfer of the shares of Stock purchased under this
Option.
8. EMPLOYMENT RELATIONSHIP. For purposes of this Agreement, Employee shall
be considered to be in the employment of the Company as long as Employee
remains an employee of either the Company, a parent or subsidiary corporation
(as defined in section 424 of the Code) of the Company, or a corporation or a
parent or subsidiary of such corporation assuming or substituting a new option
for this Option. Any question as to whether and when there has been a
termination of such employment, and the cause of such termination, shall be
determined by the Committee, and its determination shall be final.
9. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of any successors to the Company and all persons lawfully
claiming under Employee.
10. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Texas.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and Employee has executed
this Agreement, all as of the day and year first above written.
HARCOR ENERGY, INC.
BY: /s/ MARK G. HARRINGTON
MARK G. HARRINGTON
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
/s/ MARK G. HARRINGTON
MARK G. HARRINGTON, EMPLOYEE
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<PAGE> 1
EXHIBIT 5
---------
[VINSON & ELKINS LETTERHEAD]
April 1, 1996
HarCor Energy, Inc.
4400 Post Oak Parkway, Suite 2220
Houston, Texas 77027
Gentlemen:
We are acting as counsel for HarCor Energy, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") filed by the Company with the
Securities and Exchange Commission (the "SEC") for the purpose of registering
under the Securities Act of 1933, as amended (the "Act"), the offer and sale to
certain of the Company's employees and directors of 850,000 shares (the
"Issuable Shares") of the Company's common stock, par value $.10 per share (the
"Common Stock") which are issuable upon exercise of certain options (the
"Options") granted by the Company to such employees and directors.
Before rendering our opinions, we examined such corporate records of
the Company, resolutions of its Board of Directors and certificates,
instruments and other documents, and we reviewed such questions of law, as we
considered appropriate for purposes of our opinions.
Based upon the foregoing, we are of the opinion that:
(1) the Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware;
(2) the Issuable Shares, upon payment therefor and issuance by the
Company in accordance with the terms of the option agreements relating to the
Options will be validly issued, fully paid and nonassessable; and
(3) the Issued Shares are validly issued, fully paid and
nonassessable.
<PAGE> 2
HarCor Energy, Inc.
Page 2
April 1, 1996
This opinion is rendered as of the effective date of the Registration
Statement. We hereby consent to the reference to our name in the Registration
Statement and to the filing of this opinion as an exhibit to the Registration
Statement, but we do not admit that we are within the class of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended
or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
VINSON & ELKINS L.L.P.
<PAGE> 1
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 22, 1996
included in the HarCor Energy, Inc. Form 10-K for the year ended December 31,
1995 and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
April 2, 1996
<PAGE> 1
EXHIBIT 23.3
------------
CONSENT OF INDEPENDENT PETROLEUM CONSULTANTS
As independent petroleum consultants, Ryder Scott Company hereby
consents to (i) the reference to our Firm as experts, (ii) the summarization of
our report entitled "Estimated Future Reserves and Income Attributable to
Certain Leasehold and Royalty Interests of HarCor Energy, Inc. as of January 1,
1996," as detailed in Form 10-K for the year ended December 31, 1995 for HarCor
Energy, Inc. filed with the Securities and Exchange Commission in March, 1996
and (iii) the incorporation by reference of such Form 10-K in the Registration
Statement on Form S-8 relating to the HarCor Energy, Inc. 1994 Stock Option
Plan filed with the Securities and Exchange Commission on or about April 1,
1996 and any amendment thereto that incorporates by reference such Form 10-K.
RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
Houston, Texas
March 29, 1996
<PAGE> 1
EXHIBIT 23.3
------------
CONSENT OF INDEPENDENT PETROLEUM ENGINEER
As independent petroleum consultants, Huddleston & Co., Inc., hereby consents
to (i) the reference to our Firm as experts, (ii) the summarization of our
report entitled "HarCor Energy, Inc., Estimated Future Reserves and Revenues
for Certain Properties as of January 1, 1996," as detailed in Form 10-K for the
year ended December 31, 1995, for HarCor Energy, Inc., filed with the
Securities and Exchange Commission in March, 1996, and (iii) the incorporation
by reference of such Form 10-K in the Registration Statement on Form S-8
relating to the HarCor Energy, Inc. 1994 Stock Option Plan filed with the
Securities and Exchange Commission on or about April 1, 1996 and any amendment
thereto that incorporates by reference such Form 10-K.
HUDDLESTON & CO., INC.
/s/ PETER D. HUDDLESTON, P.E.
Peter D. Huddleston, P.E.
President
Houston, Texas
March 27, 1996
