<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 6, 1996
REGISTRATION NO. 333-2305
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
APACHE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 1311 41-0747868
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
ONE POST OAK CENTRAL Z.S. KOBIASHVILI
2000 POST OAK BOULEVARD, SUITE 100 ONE POST OAK CENTRAL
HOUSTON, TEXAS 77056-4400 2000 POST OAK BOULEVARD, SUITE 100
(713) 296-6000 HOUSTON, TEXAS 77056-4400
(713) 296-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
</TABLE>
Copies to:
<TABLE>
<S> <C>
JAMES M. PRINCE MICHAEL A. SASLAW
ANDREWS & KURTH L.L.P. BAKER & BOTTS L.L.P.
4200 TEXAS COMMERCE TOWER 2001 ROSS AVE., 7TH FLOOR
HOUSTON, TEXAS 77002 DALLAS, TEXAS 75201
(713) 220-4486 (214) 953-6865
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
This Post-Effective Amendment No. 1 to the Registration Statement on Form
S-4 is being filed by the registrant, Apache Corporation ("Apache"), for the
purposes of (i) including a definitive copy of Exhibit No. 8.1 as listed in Item
21 of Part II of the Registration Statement, and (ii) removing from registration
shares of Apache Common Stock, par value $1.25 per share ("Apache Common
Stock"), and associated preferred stock purchase rights (the "Rights").
Initially, 12,550,000 shares of Apache Common Stock and Rights were
registered on Form S-4 in connection with the Agreement and Plan of Merger (the
"Merger Agreement"), dated March 27, 1996, between Apache, YPY Acquisitions,
Inc. ("YPY") and The Phoenix Resource Companies, Inc. ("Phoenix"), which
provided for the merger of YPY with Phoenix (the "Merger") in a transaction
where Phoenix was the survivor and became a wholly-owned subsidiary of Apache.
On May 20, 1996, the transaction was approved by the Phoenix stockholders and
the Merger was consummated.
Pursuant to the Merger Agreement, each share of Phoenix common stock, par
value $.01 per share ("Phoenix Common Stock"), then outstanding was converted
into the right to receive, without interest, .75 shares of Apache Common Stock
and $4.00 in cash, with any fractional shares paid in cash based on $27.50 per
share of Apache Common Stock.
A total of 12,121,150 shares of Apache Common Stock and Rights were issued
for the Phoenix Common Stock outstanding at the effective time of the Merger.
Accordingly, 428,850 shares of Apache Common Stock and Rights are hereby removed
from registration.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following exhibits are filed herewith unless otherwise indicated:
<TABLE>
<S> <C>
*2.1 -- Agreement and Plan of Merger among Apache, YPY, and Phoenix dated
March 27, 1996
3.1 -- Restated Certificate of Incorporation of Apache (incorporated by
reference to Exhibit 3.1 to Apache's Annual Report on Form 10-K for
the fiscal year ended December 31, 1993, Commission File No. 1-4300)
3.2 -- Certificate of Ownership and Merger Merging Apache Energy Resources
Corporation into Apache, effective December 31, 1995, as filed with
the Secretary of the State of Delaware on December 21, 1995
(incorporated by reference to Exhibit 3.2 to Apache's Annual Report
on Form 10-K for the fiscal year ended December 31, 1995, Commission
File No. 1-4300)
3.3 -- Certificate of Designations, Preferences and Rights of Series A
Junior Participating Preferred Stock of Apache, effective January 31,
1996, as filed with the Secretary of State of Delaware on January 22,
1996 (incorporated by reference to Exhibit 3.3 to Apache's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995,
Commission File No. 1-4300)
3.4 -- Bylaws of Apache, dated as of February 9, 1996 (incorporated by
reference to Exhibit 3.4 to Apache's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995, Commission File No. 1-4300)
4.1 -- Form of Apache Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to Apache's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, Commission File No. 1-4300)
4.2 -- Rights Agreement, dated as of January 31, 1996, between Apache and
Norwest Bank Minnesota, N.A., rights agent, relating to the
declaration of a rights dividend to Apache's common shareholders of
record on January 31, 1996 (incorporated by reference to Exhibit (a)
to Apache's Registration Statement on Form 8-A, dated January 24,
1996, Commission File No. 1-4300)
4.3 -- Third Amended and Restated Credit Agreement, dated March 1, 1995,
among Apache, the lenders named therein, and the First National Bank
of Chicago, as Administrative Agent and Arranger, and Chemical Bank,
as Co-Agent and Arranger (incorporated by reference to Exhibit 10.2
to Apache's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994, Commission File No. 1-4300)
4.4 -- First Amendment to Third Amended and Restated Credit Agreement, dated
April 14, 1995, among Apache, the lenders named therein, and the
First National Bank of Chicago, as Administrative Agent and Arranger,
and Chemical Bank, as Co-Agent and Arranger (incorporated by
reference to Exhibit 99.3 to Apache's Registration Statement on Form
S-3, Registration No. 33-63923, filed November 2, 1995)
4.5 -- Second Amendment to Third Amended and Restated Credit Agreement,
dated October 23, 1995, among Apache, the lenders names therein, and
the First National Bank of Chicago, as Administrative Agent and
Arranger, and Chemical Bank, as Co-Agent and Arranger (incorporated
by reference to Exhibit 99.4 to Apache's Registration Statement on
Form S-3, Registration No. 33-63923, filed November 2, 1995)
</TABLE>
II-1
<PAGE> 4
<TABLE>
<S> <C>
4.6 -- Third Amendment to Third Amended and Restated Credit Agreement, dated
December 18, 1995, among Apache, the lenders named therein, and the
First National Bank of Chicago, as Administrative Agent and Arranger,
and Chemical Bank, as Co-Agent and Arranger (incorporated by
reference to Exhibit 10.5 to Apache's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995, Commission File No. 1-4300)
4.7 -- Fourth Amendment to Third Amended and Restated Credit Agreement,
dated December 22, 1995, among Apache, the lenders named therein, and
the First National Bank of Chicago, as Administrative Agent and
Arranger, and Chemical Bank, as Co-Agent and Arranger (incorporated
by reference to Exhibit 10.6 to Apache's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995, Commission File No.
1-4300)
4.8 -- Fifth Amendment to Third Amended and Restated Credit Agreement, dated
January 22, 1996, among Apache, the lenders named therein, and the
First National Bank of Chicago, as Administrative Agent and Arranger,
and Chemical Bank, as Co-Agent and Arranger (incorporated by
reference to Exhibit 10.7 to Apache's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995, Commission File No. 1-4300)
4.9 -- Indenture dated as of February 15, 1996, between Apache and Chemical
Bank, as trustee, relating to Apache's 7.70% Notes due 2026 and 7.95%
Notes due 2026 (incorporated by reference to Exhibit 4.1 to Apache's
Registration Statement on Form S-3, Registration No. 33-63923, filed
November 2, 1995)
4.10 -- Fiscal Agency Agreement, dated as of January 4, 1995, between Apache
and Chemical Bank, as fiscal agent, relating to Apache's 6%
Convertible Subordinated Debentures due 2002 (incorporated by
reference to Exhibit 99.2 to Apache's Current Report on Form 8-K,
dated December 6, 1994, Commission File No. 1-4300, filed January 11,
1995)
4.11 -- Indenture dated as of May 15, 1992, among Apache and Norwest Bank,
Minnesota, N.A. as trustee, relating to Apache's 9.25% Notes due 2002
(incorporated by reference to Exhibit 4.01 to Apache's Registration
Statement on Form S-3, Registration No. 33-47363, filed April 21,
1992)
*5.1 -- Opinion of Andrews & Kurth L.L.P., as to legality of issuance of
Apache Common Stock
**8.1 -- Opinion of Andrews & Kurth L.L.P., as to certain U.S. tax issues
*23.1 -- Consent of Arthur Andersen LLP (Apache)
*23.2 -- Consent of Coopers & Lybrand
*23.3 -- Consent of Arthur Andersen LLP (Phoenix)
*23.4 -- Consent of Andrews & Kurth L.L.P. (included as part of Exhibit 5.1)
*23.5 -- Consent of Petrie Parkman & Co., Inc.
*23.6 -- Consent of Ryder Scott Company Petroleum Engineers
*23.7 -- Consent of Netherland, Sewell & Associates, Inc.
*24.1 -- Power of Attorney
*99.1 -- Form of Proxy Card
*99.2 -- Opinion dated April 16, 1996 of Petrie Parkman & Co., Inc.
</TABLE>
- ---------------
* Previously filed.
** Filed herewith.
II-2
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Post-Effective Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Houston, State of Texas.
APACHE CORPORATION
Date: June 6, 1996 By: /s/ Z. S. KOBIASHVILI
------------------------------------
Z. S. Kobiashvili
Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to the Registration Statement has been signed by
the following persons, in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ---------------------------- ---------------
<S> <C> <C>
/s/ RAYMOND PLANK* Chairman and Chief Executive June 6, 1996
- --------------------------------------------- Officer(Principal Executive
Raymond Plank Officer)
/s/ MARK A. JACKSON* Vice President and Chief June 6, 1996
- --------------------------------------------- Financial Officer (Principal
Mark A. Jackson Financial Officer)
/s/ THOMAS L. MITCHELL* Controller and Chief June 6, 1996
- --------------------------------------------- Accounting Officer
Thomas L. Mitchell (Principal Accounting
Officer)
/s/ FREDERICK M. BOHEN* Director June 6, 1996
- ---------------------------------------------
Frederick M. Bohen
/s/ VIRGIL B. DAY* Director June 6, 1996
- ---------------------------------------------
Virgil B. Day
/s/ G. STEVEN FARRIS* Director June 6, 1996
- ---------------------------------------------
G. Steven Farris
/s/ RANDOLPH M. FERLIC* Director June 6, 1996
- ---------------------------------------------
Randolph M. Ferlic
/s/ EUGENE C. FIEDOREK* Director June 6, 1996
- ---------------------------------------------
Eugene C. Fiedorek
/s/ W. BROOKS FIELDS* Director June 6, 1996
- ---------------------------------------------
W. Brooks Fields
/s/ ROBERT V. GISSELBECK* Director June 6, 1996
- ---------------------------------------------
Robert V. Gisselbeck
Director
- ---------------------------------------------
Stanley K. Hathaway
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ---------------------------- ----------------
<S> <C> <C>
/s/ JOHN A. KOCUR* Director June 6, 1996
- ---------------------------------------------
John A. Kocur
Director
- ---------------------------------------------
Mary Ralph Lowe
/s/ JOSEPH A. RICE* Director June 6, 1996
- ---------------------------------------------
Joseph A. Rice
*By: /s/ Z. S. KOBIASHVILI
- ---------------------------------------------
Z. S. Kobiashvili
Attorney-in-Fact
</TABLE>
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------------- ----------------------------------------------------------------
<S> <C>
*2.1 -- Agreement and Plan of Merger among Apache, YPY, and Phoenix
dated March 27, 1996
3.1 -- Restated Certificate of Incorporation of Apache (incorporated
by reference to Exhibit 3.1 to Apache's Annual Report on Form
10-K for the fiscal year ended December 31, 1993, Commission
File No. 1-4300)
3.2 -- Certificate of Ownership and Merger Merging Apache Energy
Resources Corporation into Apache, effective December 31,
1995, as filed with the Secretary of the State of Delaware on
December 21, 1995 (incorporated by reference to Exhibit 3.2
to Apache's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, Commission File No. 1-4300)
3.3 -- Certificate of Designations, Preferences and Rights of Series
A Junior Participating Preferred Stock of Apache, effective
January 31, 1996, as filed with the Secretary of State of
Delaware on January 22, 1996 (incorporated by reference to
Exhibit 3.3 to Apache's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, Commission File No.
1-4300)
3.4 -- Bylaws of Apache, dated as of February 9, 1996 (incorporated
by reference to Exhibit 3.4 to Apache's Annual Report on Form
10-K for the fiscal year ended December 31, 1995, Commission
File No. 1-4300)
4.1 -- Form of Apache Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to Apache's Annual Report on Form
10-K for the fiscal year ended December 31, 1995, Commission
File No. 1-4300)
4.2 -- Rights Agreement, dated as of January 31, 1996, between
Apache and Norwest Bank Minnesota, N.A., rights agent,
relating to the declaration of a rights dividend to Apache's
common shareholders of record on January 31, 1996
(incorporated by reference to Exhibit (a) to Apache's
Registration Statement on Form 8-A, dated January 24, 1996,
Commission File No. 1-4300)
4.3 -- Third Amended and Restated Credit Agreement, dated March 1,
1995, among Apache, the lenders named therein, and the First
National Bank of Chicago, as Administrative Agent and
Arranger, and Chemical Bank, as Co-Agent and Arranger
(incorporated by reference to Exhibit 10.2 to Apache's Annual
Report on Form 10-K for the fiscal year ended December 31,
1994, Commission File No. 1-4300)
4.4 -- First Amendment to Third Amended and Restated Credit
Agreement, dated April 14, 1995, among Apache, the lenders
named therein, and the First National Bank of Chicago, as
Administrative Agent and Arranger, and Chemical Bank, as
Co-Agent and Arranger (incorporated by reference to Exhibit
99.3 to Apache's Registration Statement on Form S-3,
Registration No. 33-63923, filed November 2, 1995)
4.5 -- Second Amendment to Third Amended and Restated Credit
Agreement, dated October 23, 1995, among Apache, the lenders
names therein, and the First National Bank of Chicago, as
Administrative Agent and Arranger, and Chemical Bank, as
Co-Agent and Arranger (incorporated by reference to Exhibit
99.4 to Apache's Registration Statement on Form S-3,
Registration No. 33-63923, filed November 2, 1995)
</TABLE>
<PAGE> 8
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------------- ----------------------------------------------------------------
<S> <C>
4.6 -- Third Amendment to Third Amended and Restated Credit
Agreement, dated December 18, 1995, among Apache, the lenders
named therein, and the First National Bank of Chicago, as
Administrative Agent and Arranger, and Chemical Bank, as
Co-Agent and Arranger (incorporated by reference to Exhibit
10.5 to Apache's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, Commission File No. 1-4300)
4.7 -- Fourth Amendment to Third Amended and Restated Credit
Agreement, dated December 22, 1995, among Apache, the lenders
named therein, and the First National Bank of Chicago, as
Administrative Agent and Arranger, and Chemical Bank, as
Co-Agent and Arranger (incorporated by reference to Exhibit
10.6 to Apache's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, Commission File No. 1-4300)
4.8 -- Fifth Amendment to Third Amended and Restated Credit
Agreement, dated January 22, 1996, among Apache, the lenders
named therein, and the First National Bank of Chicago, as
Administrative Agent and Arranger, and Chemical Bank, as
Co-Agent and Arranger (incorporated by reference to Exhibit
10.7 to Apache's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, Commission File No. 1-4300)
4.9 -- Indenture dated as of February 15, 1996, between Apache and
Chemical Bank, as trustee, relating to Apache's 7.70% Notes
due 2026 and 7.95% Notes due 2026 (incorporated by reference
to Exhibit 4.1 to Apache's Registration Statement on Form
S-3, Registration No. 33-63923, filed November 2, 1995)
4.10 -- Fiscal Agency Agreement, dated as of January 4, 1995, between
Apache and Chemical Bank, as fiscal agent, relating to
Apache's 6% Convertible Subordinated Debentures due 2002
(incorporated by reference to Exhibit 99.2 to Apache's
Current Report on Form 8-K, dated December 6, 1994,
Commission File No. 1-4300, filed January 11, 1995)
4.11 -- Indenture dated as of May 15, 1992, among Apache and Norwest
Bank, Minnesota, N.A. as trustee, relating to Apache's 9.25%
Notes due 2002 (incorporated by reference to Exhibit 4.01 to
Apache's Registration Statement on Form S-3, Registration No.
33-47363, filed April 21, 1992)
*5.1 -- Opinion of Andrews & Kurth L.L.P., as to legality of issuance
of Apache Common Stock
**8.1 -- Opinion of Andrews & Kurth L.L.P., as to certain U.S. tax
issues
*23.1 -- Consent of Arthur Andersen LLP (Apache)
*23.2 -- Consent of Coopers & Lybrand
*23.3 -- Consent of Arthur Andersen LLP (Phoenix)
*23.4 -- Consent of Andrews & Kurth L.L.P. (included as part of
Exhibit 5.1)
*23.5 -- Consent of Petrie Parkman & Co., Inc.
*23.6 -- Consent of Ryder Scott Company Petroleum Engineers
*23.7 -- Consent of Netherland, Sewell & Associates, Inc.
*24.1 -- Power of Attorney
*99.1 -- Form of Proxy Card
*99.2 -- Opinion dated April 16, 1996 of Petrie Parkman & Co., Inc.
</TABLE>
- ---------------
* Previously filed.
** Filed herewith.
<PAGE> 1
EXHIBIT 8.1
[ANDREWS & KURTH LETTERHEAD]
May 20, 1996
The Phoenix Resource Companies, Inc.
6525 N. Meridian Avenue
Suite 102
Oklahoma City, OK 73116-1491
Dear Sirs:
Section 6.2(h) of the Agreement and Plan of Merger by and
among Apache Corporation (the "Parent"), YPY Acquisitions, Inc. (the "Merger
Sub") and The Phoenix Resource Companies, Inc. (the "Company") dated as of
March 27, 1996 (the "Merger Agreement") requires our opinion as to certain
federal income tax consequences under the Internal Revenue Code of 1986, as
amended (the "Code"), resulting from the proposed merger (the "Merger") of
Merger Sub, with and into the Company, in return for voting stock of Parent and
other consideration pursuant to the Merger Agreement.
In rendering our opinion, we have assumed the Merger will
occur in accordance with the Merger Agreement, including any exhibits thereto,
and that no other arrangements between Parent, Merger Sub, the Company or any
stockholders thereof exist other than those described in the Merger Agreement
or Joint Proxy Statement and Prospectus; and we have relied on and assumed to
be accurate, as of date hereof, as of the May 20, 1996 and, without further
inquiry, the following representations made by and on behalf of the Company,
Parent and Merger Sub. All terms used herein and not otherwise defined have
the meanings ascribed to them in the Merger Agreement.
REPRESENTATIONS
1. The fair market value of the Parent voting stock and
other consideration received by each Company stockholder will be
approximately equal to the fair market value of the common stock of
the Company surrendered in the exchange.
<PAGE> 2
ANDREWS & KURTH
L.L.P.
The Phoenix Resource Companies, Inc.
May 20, 1996
Page 2
2. To the best of the knowledge of the Company's
management, there is no plan or intention on the part of the
stockholders of the Company to sell, exchange or otherwise dispose of
a number of shares of Parent voting stock received in the Merger that
would reduce the Company stockholders' ownership of Parent voting
stock to a number of shares having a value, as of the Closing Date, of
less than 50 percent of the value of all of the formerly outstanding
stock of the Company as of the same date.
For purposes of this representation, shares of the common
stock of the Company exchanged for cash or other property or exchanged
for cash in lieu of fractional shares of Parent voting stock have been
treated as outstanding common stock of the Company at the Closing
Date. Additionally, shares of common stock of the Company and shares
of Parent voting stock held by the Company stockholders, if any, and
otherwise sold, redeemed, or disposed of prior or subsequent to the
Merger were considered in making this representation.
3. Following the Merger, the Company will hold at least
90 percent of the fair market value of its net assets and at least 70
percent of the fair market value of its gross assets held immediately
prior to the Merger and at least 90 percent of the fair market value
of Merger Sub's net assets and at least 70 percent of the fair market
value of Merger Sub's gross assets held immediately prior to the
Merger.
For purposes of this representation, amounts paid by the
Company or Merger Sub to dissenters, amounts paid by the Company or
Merger Sub to stockholders who receive cash or other property, amounts
used by the Company or Merger Sub to pay reorganization expenses, and
all redemptions and distributions (except for any regular, normal
dividends) made by the Company will be included as assets of the
Company or Merger Sub, respectively, immediately prior to the Merger.
4. Prior to the Merger, Parent will be in control of
Merger Sub
For purposes of this representation and the following
representations, control is defined to mean the ownership of stock
possessing at least 80 percent of the total combined voting power of
all classes of stock entitled to vote and at least 80 percent of the
total number of shares of all other classes of stock of the
corporation.
5. The Company has no plan or intention to issue
additional shares of its stock that would result in Parent losing
control of the Company.
<PAGE> 3
ANDREWS & KURTH
L.L.P.
The Phoenix Resource Companies, Inc.
May 20, 1996
Page 3
6. Parent has no plan or intention to reacquire any of
its stock issued in the Merger.
7. Parent has no plan or intention to liquidate the
Company subsequent to the Closing Date; to merge the Company with or
into another corporation subsequent to the Closing Date; to sell or
otherwise dispose of any of the Company's assets or any assets
acquired from Merger Sub subsequent to the Closing Date, except for
dispositions made in the ordinary course of business.
8. Merger Sub will have no liabilities assumed by the
Company, and will not transfer to the Company any assets subject to
liabilities in the Merger.
9. Following the Merger, the Company intends to, and
Parent will cause the Company to, continue its historic business or
use a significant portion of its historic business assets in a
business.
10. Parent, Merger Sub, the Company and the stockholders
of the Company will each pay their respective expenses, if any,
incurred in connection with the Merger.
11. There is no intercorporate indebtedness existing
between Parent and the Company or between Merger Sub and the Company
that was issued, acquired or will be settled at a discount.
12. In the Merger, shares of the common stock of the
Company representing control of the Company will be exchanged solely
for voting stock of Parent.
13. At the time of the Merger, the Company will not have
outstanding any warrants, options, convertible securities, or any
other type of right pursuant to which any person could acquire stock
in the Company that, if exercised or converted, would affect Parent's
acquisition or retention of control of the Company.
14. Parent does not own, nor has it owned during the past
five years, any shares of the capital stock of the Company.
15. Neither Parent, Merger Sub or the Company are
investment companies.
For purposes of this representation, an investment company
means a regulated investment company (as defined in the Code), a real
estate investment trust (as defined in the
<PAGE> 4
ANDREWS & KURTH
L.L.P.
The Phoenix Resource Companies, Inc.
May 20, 1996
Page 4
Code), or a corporation, 50 percent or more of the value of whose
total assets are stock and securities and 80 percent or more of the
value of whose total assets are assets held for investment within the
meaning of Section 368(a)(2)(F)(iii) of the Code.
16. On the Closing Date, the fair market value of the
assets of the Company will exceed the sum of its liabilities, plus the
amount of liabilities, if any, to which its assets are subject.
17. Cash payments by Parent or Merger Sub to Company
Stockholders in lieu of fractional shares of Parent voting stock are
solely for the purpose of avoiding the expense and inconvenience to
Parent of issuing fractional shares and does not represent separately
bargained for consideration. The total cash consideration that will
be paid in the transaction to the Company Stockholders instead of
issuing fractional shares of Parent voting stock will not exceed one
percent of the total consideration that will be issued in the
transaction to the Company Stockholders in exchange for their shares
of Company Stock. The fractional shares of each Company Stockholder
will be aggregated, and no Company Stockholder will receive cash in an
amount greater than the value of one full share of Company Common
Stock.
18. The Company is not under the jurisdiction of a court
in a case under Title 11 of the United States Code, or a receivership,
foreclosure, or similar proceeding in a Federal or State court.
19. None of the compensation received by any
stockholder-employees of the Company will be separate consideration
for, or allocable to, any of their shares of the common stock of the
Company.
We are of the opinion, based on existing provisions of the
Code, existing Treasury regulations, existing court decisions, and existing
public rulings and other administrative interpretations, and based on our
review of such documents as we have deemed necessary, on our discussions with
management of the Company, the foregoing representations and assumptions and
any representations contained in the Merger Agreement or Affiliates Agreement,
or any exhibits thereto, all assumed to be accurate as of the date hereof and
as of the Closing Date, that:
(i) the Merger of Merger Sub with and into the Company
pursuant to the Merger Agreement and in accordance with applicable
state law will be treated for federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code;
<PAGE> 5
ANDREWS & KURTH
L.L.P.
The Phoenix Resource Companies, Inc.
May 20, 1996
Page 5
(ii) Parent, Merger Sub, and the Company will each be a
party to the reorganization within the meaning of Section 368(b) of
the Code; and
(iii) the stockholders of Company will not recognize any
gain or loss as a result of the Merger, other than to the extent such
stockholders receive cash in lieu of a fractional share of Parent
voting stock.
This opinion is based, in part, upon relevant legal authority
in effect as of the date hereof. We provide no assurance that the legal
authorities upon which this opinion is based will not be amended, revoked or
modified (with or without retroactive effect) in a manner which would affect or
change our conclusions. Furthermore, should any of the representations or
assumptions set forth above prove to be inaccurate, as of the Closing Date, our
opinions may change.
This opinion letter is limited to the matters set forth
herein, and no opinions are intended to be implied or may be inferred beyond
those expressly stated herein. Our opinions are rendered as of the date
hereof and we assume no obligation to update or supplement these opinions to
reflect any change of fact, circumstance, or law after the date hereof.
This opinion is for the sole benefit of the addressee and may
not be quoted, filed with any governmental authority, or otherwise circulated
or relied upon by any other person or for any other purposes without our prior
written consent.
Very truly yours,
/s/ ANDREWS & KURTH L.L.P.
