-----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, Qq4KMjF4h6aeEfokcw7ZK1VjdjSfA6ZxfK0brmQxsn4fnUlOSyYTUVPu6abtoLQU tgAzpA5Y8PluVYZ/yH9D/A== 0000950129-96-001153.txt : 19960607 0000950129-96-001153.hdr.sgml : 19960607 ACCESSION NUMBER: 0000950129-96-001153 CONFORMED SUBMISSION TYPE: S-4 POS PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19960606 EFFECTIVENESS DATE: 19960606 SROS: CSE SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: APACHE CORP CENTRAL INDEX KEY: 0000006769 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 410747868 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-02305 FILM NUMBER: 96577479 BUSINESS ADDRESS: STREET 1: 2000 POST OAK BLVD STREET 2: ONE POST OAK CENTER STE 100 CITY: HOUSTON STATE: TX ZIP: 77056-4400 BUSINESS PHONE: 7132966000 MAIL ADDRESS: STREET 1: 2000 POST OAK BLVD STREET 2: STE 100 CITY: HOUSTON STATE: TX ZIP: 77056-4400 FORMER COMPANY: FORMER CONFORMED NAME: APACHE OIL CORP DATE OF NAME CHANGE: 19660830 S-4 POS 1 APACHE CORPORATION POST EFF. AMEND #1 TO 333-2305 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) 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)
Copies to: 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
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 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. 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: *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)
II-1 4 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.
- --------------- * Previously filed. ** Filed herewith. II-2 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.
SIGNATURE TITLE DATE - --------------------------------------------- ---------------------------- --------------- /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
6
SIGNATURE TITLE DATE - --------------------------------------------- ---------------------------- ---------------- /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
7 INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION - ----------------- ---------------------------------------------------------------- *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)
8
EXHIBIT NO. DESCRIPTION - ----------------- ---------------------------------------------------------------- 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.
- --------------- * Previously filed. ** Filed herewith. EX-8.1 2 OPINION OF ANDREWS & KURTH L.L.P. 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. 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. 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 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; 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. -----END PRIVACY-ENHANCED MESSAGE-----