Harken Energy Corporation internal documents

Introduction

July 19, 2002 — In his July 8, 2002, press conference, President George W. Bush told reporters “to look back on the directors’ minutes” for details of his knowledge of and involvement in the financial reporting of Harken Energy Corporation that was the subject of a Securities and Exchange Commission investigation in the early 1990s.

Bush, who was a director of Harken during the period in question and was himself investigated for insider trading (the SEC determined that there was insufficient evidence to bring charges against him), did not answer specific questions about his knowledge of the company’s sale of Harken’s Aloha Petroleum subsidiary. Harken reported the gain from the sale before it had received payment from the ultimate buyer, Advance Petroleum Marketing, Inc.

Yet Bush chaired a special committee of board members set up to review the terms of a $12 million note held by Intercontinental Mining and Resources Ltd., which was set up by Harken insiders to purchase Aloha, according to an internal Harken document dated March 14, 1990 that was obtained by the Center for Public Integrity.

The SEC ultimately determined that Harken inaccurately reported the sale, and made the company restate its earnings.

After Bush’s press conference, the White House told reporters that it did not have the Harken directors’ minutes, and would not ask Harken Energy to release them to the public.

The Center for Public Integrity has obtained internal Harken Energy documents that were part of the SEC investigation, including minutes of board meetings, meeting agendas, and memos, all of which cast more light on Harken’s financial crisis in 1990. The documents are technical in nature, and are written for insiders who, presumably, would be well versed in the company’s financial predicament and prospects. The documents the Center has obtained do not unambiguously resolve the question of what Bush knew about the sale of the Aloha subsidiary.

The March 14, 1990 Shareholders Notes and the March 14, 1990 minutes from the Board of Directors meeting suggest that Bush was aware of some of the details of the Aloha transaction; the decision to renegotiate the terms of the deal with Advanced Petroleum Marketing was unanimously approved by the board.

As a public service, the Center is making these documents available here.

February 1, 1990 Letter From Mikel D. Faulkner, president of Harken Energy, to the Board of Directors. Faulkner wrote, in part, “It appears that our 1989 profitability will be in the range of $1.2 million. Although disappointing, this is consistent with the last projection which was made and provided to the Board Although several accounting issues remain unresolved, it is anticipated that none of them should cause major changes either up or down in that projection.”

March 6, 1990 Letter From Mikel D. Faulkner, president of Harken Energy, to the Board of Directors, regarding the March 14 board meeting. Faulkner refers to the newly formed special committee of the board of directors, which Bush chaired. “The Special Committee noted above should be appointed as an independent committee to approve any action taken with regard to the Shareholders’ notes which originated in connection with the Soros transaction.”

Public Common Stock Offering presented to the board of directors, March 14, 1990. “In working and planning toward the public offering which will be priced based on the market price for the Company’s common stock established on or about Closing, it is appropriate for the Company to take reasonable steps and measures to avoid fluctuations in the market price,” the document notes. Among those steps: “Exercise caution regarding insider and related party transactions.”

Shareholders Notes presented to the board of directors, March 14, 1990. Bush is proposed as the chairman of a board committee to investigate $12 million in secured notes held by Intercontinental Mining & Resources Limited (IMR), Atherstone Corporation, N.V. and Galata Associates. The document advises the board to appoint and empower a Special Independent Committee with full authority to review, negotiate, authorize and approve the terms and provisions of a restructuring of the $12 million of debt. IMR was the group of Harken insiders who, in 1989, purchased the Aloha subsidiary from Harken. Harken’s treatment of that sale, and the subsequent sale of Aloha to Advanced Petroleum Marketing, was challenged by the SEC, which forced Harken to restate its earnings for 1989.

General Resolutions presented to the board of directors, March 14, 1990. Among the resolutions were various personnel and financial items, including one requesting approval of the sale of IMR’s stake in Aloha to Advance Petroleum Marketing. “IMR has requested the Company’s consent to this sale which will include an assumption and restructuring of the $11,000,000 seven year promissory note from IMR to Harken.” The terms of the deal are summarized, among them: “IMR will guarantee payment of the restructured note.”

Minutes of the Board of Directors Meeting, March 14, 1990 Faulkner presented “a summary concerning the preliminary financial statements of income and loss for the Company for the 1989 fiscal year.” Talit Othman, chairman of the audit committee (on which Bush served) reported that Arthur Andersen, Harken’s accountants, responded “to a request for review of affiliated party transactions which were completed by the Company during 1989 upon which review the auditors found no areas of concern or impropriety.” The sale of Aloha to IMR in 1989 was an affiliated party transaction; the minutes do not note whether that transaction was reviewed by Arthur Andersen. The board also reviewed the sale of Aloha from IMR to Advance Petroleum. “The Board discussed the terms of this transaction in detail and with Mr. Quasha and Mr. Laikind [the two Harken directors who were also investors in IMR] upon motion being duly made and seconded, the Board unanimously authorized and empowered the President with full authority [to] approve or disapprove the terms and provisions of such transaction in his sole and reasonable discretion.”

April 30, 1990 Letter to the Board of Directors from Faulkner. Cover letter sent with the companies February 1990 financial statements. Faulkner wrote, “Harken’s February consolidated balance sheet does not reflect the reclassifications of the major shareholders’ notes to equity or the reclassification of the IMR note to other assets based upon its March sale to Advance.”

May 8, 1990 Minutes of a special meeting of the executive committee (Bush was not a member of the executive committee). The committee decided to abandon a plan to raise capital through a public offering of Harken stock. Instead, the committee favored a rights offering for two of Harken’s subsidiaries, in effect splitting the company into three separate public companies with their own management and boards of directors.

May 11, 1990 Minutes of the Board of Directors This meeting followed an April 25 board meeting and a May 8 meeting of the Executive Committee (of which Bush was not a member). The Center does not have minutes from the April 25 meeting. The board discussed the rights offering – an attempt to raise capital by offering shares in two Harken subsidiaries, Harken Marketing Corporation and Tejas Power Corporation. Bush told the board that “the interests and preservation of value for the small shareholder of the Company” must be among the guiding principles of Harken’s efforts to raise capital – one of the few comments attributed to him in the minutes. The board also reviewed the reasons for abandoning a proposed public stock offering of additional shares of Harken stock.

May 17, 1990 Minutes of a Special Committee Meeting The special committee, chaired by Bush, discussed the terms of the rights offering. Michael Eisenson, one of two representatives of Harvard Management Company on Harken’s board of directors, offered the major shareholders’ plan for a rights offering. The special committee decides that elements of the plan need to be further evaluated to determine whether they are fair to the company’s other investors, and designates Smith Barney, the manager of the rights offering, to analyze the plan.

May 18, 1990 Letter to the Special Committee from Bruce Huff, senior vice president of Harken. One day after its first meeting, Huff called for another due to “several events which have occurred.” “It is [sic] become evident that it will be necessary to reach a conclusion regarding the fairness of the proposal by the Major Shareholders” to help Harken obtain more favorable treatment from its creditors. “Such waivers and extensions [from the company’s major banks] will allow the Company to properly report the substantial portion of its debt facilities as long-term and thereby avoid any negative repercussions that might otherwise occur if the Company remains in a state of non-compliance with regard to loan covenants.”

May 25, 1990 Letter to the Board of Directors from Faulkner, with the agenda for the company’s next board meeting. The agenda lists several objectives: “Improve consolidated and subsidiary financial information,” “avoid default under existing bank lines,” “monitize [sic] assets to raise cash,” and “resolve open accounting issues.”

June 11, 1990 Minutes of the Audit Committee The Audit Committee discussed the plan to split Harken into three publicly traded companies with representatives of Arthur Andersen, the firm’s auditors. Talit Othman, the chair of the committee, “stressed the desire of the Audit Committee that the accounting practices of the Company reflect moderate policies and procedures compared to industry practices. He stressed this would avoid the use of extremely aggressive accounting policies in the presentation of financial statements of the Company and its subsidiaries.”

July 11, 1990 Letter to the Board of Directors from Dale R. Valvo, president of Harken Marketing Company, a subsidiary of Harken Energy. Valvo describes terms of the deal struck with Advance Petroleum Marketing over the restructuring of the Aloha purchase. “The very significant disadvantage of this deal is that HMC will likely have to take a write down of approximately $1,000,000 to $7,000,000 in the second quarter of 1990”

July 13, 1990 Letter to the Board of Directors from Faulkner. Updates the board on recent developments. “The Special Committee, Chaired by George Bush has received positive response from Smith Barney with regard to the fairness of the ‘major Shareholder’ transactions,” Faulkner wrote. He also notes of the Aloha Petroleum deal, “Given the finalization of certain outstanding issues, this transaction holds significant benefit to HMC in that it provides cash during a much needed time in the Company’s history.”

July 26, 1990 Presentation to the Executive Committee Contains detailed information on how Harken attempted to cope with its financial crisis. The document includes information on savings from salary cuts and staff reductions, estimates and allocations of costs related to the company’s rights offering, the terms of a loan agreement for Harken Marketing Company, and an analysis of the company’s ownership structure after the proposed rights offering had been completed. Among the costs Harken incurred were legal fees and salary expenses of more than $930,000 owed to Quasha, Wessely & Schneider. Alan Quasha, a partner in the firm, sat on the board of directors; his North American Resources was one of major shareholders in Harken. Bush was not a member of the Executive Committee.

July 26, 1990 Minutes of the Executive Committee The committee discussed the terms of the Aloha sale to Advance Petroleum Marketing. “Mr. Valvo discussed the reasons for restructuring this transaction with Aloha and Advance was [sic] to create an incentive on their part to make a significant additional cash payment immediately, to encourage earlier payments of the remaining indebtedness and to relieve HMC and the Company from any further environmental obligations or liabilities for Aloha under the previous sale agreements. The Committee discussed the proposed transaction in great detail” The committee was also briefed on “the current status regarding the Special Committee of the Board of Directors which had been established to review and consider the affiliated transactions related to the rights offering.” Bush chaired the Special Committee.

August 27, 1990 Letter to the Board of Directors from Faulkner. “As you are aware, we released news on Monday, August 20, 1990, of our second quarter loss. The stock acted erratically but seems to have recovered from its immediate decline.”

August 29, 1990 Minutes of the Board of Directors Meeting Reference was made to a change in the minutes of a May 21, 1990 board meeting. Quasha proposed the change, which was seconded by Bush. The Center does not have minutes of the May 21 meeting. The audit committee, of which Bush was a member, reported that it had met “earlier in the morning with the Company’s auditors, Arthur Andersen & Co. It reviewed the items which had been discussed with the Company’s auditors being the second quarter write-off and the Aloha Transaction and various accounting and auditing issues relating to it.”