-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Vi64+kXBgc+fuzxm5fUPZN9mmwvGhoCIiVv8awjVdEi7zwfziiTLhXSvL2R+W8li GInswIM+BaQCBeC3b3KjUA== 0000950129-96-000549.txt : 19960403 0000950129-96-000549.hdr.sgml : 19960403 ACCESSION NUMBER: 0000950129-96-000549 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19960402 EFFECTIVENESS DATE: 19960421 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: HARCOR ENERGY INC CENTRAL INDEX KEY: 0000315272 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 330234380 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-02179 FILM NUMBER: 96543861 BUSINESS ADDRESS: STREET 1: FIVE POST OAK PARK STREET 2: STE 2220 CITY: HOUSTON STATE: TX ZIP: 77027-3413 BUSINESS PHONE: 7139611804 FORMER COMPANY: FORMER CONFORMED NAME: PANGEA PETROLEUM CO DATE OF NAME CHANGE: 19880120 FORMER COMPANY: FORMER CONFORMED NAME: POLLOCK PETROLEUM INC DATE OF NAME CHANGE: 19840807 S-8 1 HARCOR ENERGY, INC. 1994 STOCK OPTION PLAN 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) DELAWARE 1330 33-0234380 (State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer of incorporation or organization) Classification Code Number) Identification No.)
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 --------------------- CALCULATION OF REGISTRATION FEE
============================================================================================================ 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 - ------------------------------------------------------------------------------------------------------------ Common Stock, par value $.10 . . . . . 850,000 $ (2) $ 3,722,250 $ 1,284.00 ============================================================================================================
(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. ================================================================================ 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. 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 -3- 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. -4- 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. -5- 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. 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.
SIGNATURE TITLE DATE /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
-7- 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. EX-4.4 2 STOCK OPTION AGREEMENT - MARK G. HARRINGTON 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 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. -2- 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 -3- 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 -4- 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 -5- 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 -6- EX-5 3 OPINION OF VINSON & ELKINS L.L.P. 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. 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. EX-23.1 4 CONSENT OF ARTHUR ANDERSEN LLP 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 EX-23.2 5 CONSENT OF RYDER SCOTT COMPANY PETROLEUM ENGINEERS 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 EX-23.3 6 CONSENT OF HUDDLESTON & CO. INC. 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 -----END PRIVACY-ENHANCED MESSAGE-----