<PAGE>
As filed with the Securities and Exchange Commission on July 12, 1995
SEC Registration No. 33-64778
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
POST EFFECTIVE AMENDMENT 2 TO FORM S-3 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
EVERGREEN RESOURCES, INC.
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(Exact Name of Registrant as Specified in its Charter)
COLORADO 84-0834147
- ------------------------------ -----------------------------
(State of Other Jurisdiction (IRS Employer Identification
of Incorporation) Number)
1000 Writer Square
1512 Larimer Street
Denver, Colorado 80202
(303) 534-0400
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(Address and Telephone Number of Registrant's Principal
Executive Offices and Principal Place of Business)
James S. Williams, Chairman of the Board
1000 Writer Square
1512 Larimer Street
Denver, Colorado 80202
(303) 534-0400
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(Name, Address and Telephone Number of Agent for Service)
Copies to:
John B. Wills, Esq.
410 Seventeenth Street, Suite 2100
Denver, Colorado 80202
(303) 628-0747
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Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / X /
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Title of Each Amount Proposed Maximum Proposed Maximum Amount of
Class of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) Price per Share Price (2) Fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
No Par Value 652,010 $10.00 Per $6,520,100 $2,037.43
Common Stock Shares Share
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- -------------------------------------------------------------------------------------------------------------------
(1) All securities subject to this Registration Statement are on behalf of
selling shareholders (see "Selling Shareholders").
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 by reference to the last sale reported on the NASDAQ
National Market System on July 19, 1993.
</TABLE>
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The Exhibit Index appears on page II-5 of the sequentially numbered pages of
this Registration Statement. This Registration Statement, including exhibits,
contains 19 pages.
<PAGE>
EVERGREEN RESOURCES, INC.
Cross-Reference Sheet pursuant to Item 501(b) of Regulation S-K between
Registration Statement (Form S-3) and Form of Prospectus.
ITEM NUMBER AND CAPTION LOCATION IN PROSPECTUS
----------------------- ----------------------
1. Forepart of the Registration Cover Page; Inside Front
Statement and Outside Front Cover Pages
Cover Page of Prospectus
2. Inside Front and Outside Back Inside Front Cover Pages
3. Summary Information, Risk Prospectus Summary; Risk
Factors and Ratio of Earnings Factors
to Fixed Charges
4. Use of Proceeds Not Applicable
5. Determination of Offering Price Cover Page; Plan of
Distribution
6. Dilution Not Applicable
7. Selling Security Holders Selling Shareholders
8. Plan of Distribution Plan of Distribution
9. Description of Securities to be Not Applicable
Registered
10. Interest of Named Experts and Not Applicable
Counsel
11. Material Changes Recent Developments
12. Incorporation of Certain Incorporation of Certain
Information by Reference Documents by Reference
13. Disclosure of Commission Part II, Item 17
Position on Indemnification
for Securities Act Liabilities
<PAGE>
PROSPECTUS
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EVERGREEN RESOURCES, INC.
652,010 Shares Common Stock
(No Par Value)
All of the shares of Evergreen Resources, Inc. (the "Company" Common Stock
are being registered on behalf of security holders ("Selling Shareholders"),
which are offering for sale 652,010 shares of the Company's Common Stock which
are presently outstanding or which underlie existing stock options and/or
warrants. The Company will receive $2,944,025 from the sale of such shares by
the Selling Shareholders upon exercise of the remaining unconverted stock
options and/or warrants. The Company will utilize proceeds for general working
capital. The Selling Shareholders are not restricted in the price or prices at
which they may sell their shares and sales of such shares may depress the market
price of the Company's Common Stock. (See "Selling Shareholders".)
This offering is not being underwritten. The shares will be offered and
sold by the Selling Shareholders from time to time at prices to be determined at
the time of such sales.
It is anticipated that sales of the 652,010 shares of Common Stock being
offered hereby when made, will be made through customary brokerage channels
either through broker-dealers acting as agents or brokers for the Selling
Shareholders, or through broker-dealers acting as principals who may then resell
the shares in the over-the-counter market or otherwise, or at private sales in
the over-the-counter market or otherwise, at negotiated prices related to
prevailing market prices at the time of the sales or by a combination of such
methods of offering. Thus, the period of distribution of such shares may occur
over an extended period of time. The Selling Shareholders will pay or assume
brokerage commissions or discounts incurred in the sale of their shares.
The Company is paying all of the expenses of registering the Common Stock
under the Securities Act of 1933, as amended, estimated to be $10,000 for
filing, printing, legal, accounting and miscellaneous expenses in connection
with the offering.
On July 10, 1995, the closing sale price of the Company's Common Stock as
reported on the NASDAQ National Market System was $4.87.
---------------------------
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. (SEE "RISK FACTORS".)
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION, NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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The date of this Prospectus is July ____, 1995.
<PAGE>
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this Prospectus in connection with the offer
contained in this Prospectus, and, if given or made, such other information or
representations must not be relied upon as having been authorized by the Company
or the Selling Stockholders. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, create an implication that
there has been no change in the affairs of the Company since the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and, in accordance therewith,
files reports, proxy statements and other information with the Commission. Such
reports, proxy statements and other information can be inspected and copied at
the public reference facilities maintained by the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, Room 1024 and at the following
Regional Offices of the Commission: Everett McKinley Dirksen Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Room 1204, and Jacob K. Javits
Building, 75 Park Place, 14th Floor, New York, New York 10007. Copies of such
material also can be obtained at prescribed rates by writing to the Commission,
Public Reference Section, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549. The Company's Common Stock is quoted on NASDAQ, and financial
reports, proxy statements and other information concerning the Company may be
inspected at the National Association of Securities Dealers, Inc., Washington,
D.C.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, all of which were previously filed with the
Commission, are hereby incorporated by reference in this Prospectus:
1. The Company's Annual Report on Form 10-K for the year ended March 31, 1995.
2. The Company's report on Form 8K dated December 9, 1994.
All documents filed by the Company prior to the date of this Prospectus
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act prior to the
termination of the offering of the shares of Common Stock shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of those documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that such statement is modified or replaced by a statement contained
in this Prospectus or in any other subsequently filed document that also is or
is deemed to be incorporated by reference into this Prospectus. Any such
statement so modified or superseded shall not be deemed, except as so modified
or replaced, to constitute a part of this Prospectus. The Company undertakes to
provide without charge to each person to whom a copy of this Prospectus has been
delivered, upon the written or oral request of any such person, including any
beneficial owner, a copy of any or all of the documents referred to above that
have been or may be incorporated in this Prospectus by reference, other than
exhibits to such documents. Written or oral requests for such copies should be
directed to James S. Williams, Chairman, Evergreen Resources, Inc., 1512 Larimer
Street, Suite 1000, Denver, Colorado, 80202, (303) 534-0400.
2
<PAGE>
TABLE OF CONTENTS
PAGE
Available Information. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Documents by Reference. . . . . . . . . . . . . 2
Prospectus Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Recent Developments. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Selling Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be read
in conjunction with, the more detailed information appearing elsewhere in this
Prospectus.
THE COMPANY
Evergreen Resources, Inc. ("Evergreen" or the "Company"), is a Colorado
corporation organized on January 14, 1981. Evergreen maintains its principal
executive offices at Suite 1000, 1512 Larimer Street, Denver, Colorado 80202,
and its telephone number is (303) 534-0400.
Evergreen is primarily engaged in the domestic exploration, development,
acquisition and production of oil and natural gas. Evergreen Operating Corp., a
wholly owned subsidiary, operates approximately 160 oil and gas wells on behalf
of the Company and, on a fee basis, for others, coordinating drilling activities
and arranging for the production, gathering and sale of the gas and oil from the
wells it operates. The Company's principal area of domestic activity is in the
Raton Basin of Colorado. The Company owns various working interests in 130
producing oil and gas wells. During the year ended March 31, 1995, Evergreen's
interest in producing wells generated net daily production of approximately 2.0
million cubic feet of natural gas and 100 barrels of crude oil. Evergreen
intends to focus most of its management attention and technological expertise on
opportunities to explore and develop coalbed methane gas in the Raton Basin and
in the United Kingdom.
THE OFFERING
Securities Offered 652,010 Shares of Common Stock, no par
value per share.
Offering Price All or part of the Shares offered hereby
may be sold from time to time in amounts
and on terms to be determined by the
Selling Shareholders at the time of the
sale.
NASDAQ Symbol EVER
4
<PAGE>
RISK FACTORS
Prospective purchasers of the Company's Common Stock should carefully
consider, together with the other information herein, the following:
OIL AND GAS INDUSTRY AND FUTURE OPERATIONS
The Company's revenues depend on certain factors relating to the oil and
gas business which are beyond its control, such as the prices of natural gas and
crude oil. In addition, the availability of markets for gas and oil production
depends upon numerous factors that cannot be controlled, including but not
limited to the availability of other domestic or imported production, the
location and capacity of pipelines, the effect of federal and state regulation
on such production, and general economic conditions. The Company's ability to
sell its production depends upon, among other factors, the availability of both
a gas gathering system and a pipeline, and its ability to deliver the gas to
markets. Excess supplies of domestic oil and gas or other forms of energy,
including imported oil and gas, coal, atomic energy, and hydro-electric power
have tended to depress prices in the oil and gas industry. The price of oil
also can be affected by action of foreign governments, international cartels and
the United States government.
The Company's revenues also depend on its level of success in acquiring or
finding additional reserves. Except to the extent that the Company acquires
properties containing proved reserves or conducts successful exploration and
development activities, or both, the proved reserves of the Company will decline
as reserves are produced. There can be no assurance that the Company's planned
exploration and development projects will result in significant additional
reserves or that the Company will have future success in drilling productive
wells at low finding costs.
Locating oil and gas and drilling, completing and producing oil and gas
wells is very difficult. Even when all care and diligence is taken by the most
experienced personnel, noncommercial wells can be drilled. As a result, there
can be no assurance that the Company's initial efforts to capitalize on the
opportunities it has will be successful or that it will have the resources to
continue if its initial efforts are unsuccessful.
The Company competes in the areas of oil and gas exploration, production,
development and transportation with other companies, many of which may have
substantially larger financial and other resources. The nature of the oil and
gas business also involves a variety of risks, including the risks of operating
hazards such as fires, explosions, blow-outs, and encountering formations with
abnormal pressures, the occurrence of any of which could result in substantial
losses to Company. The Company maintains insurance against some, but not all,
of these risks.
LACK OF EXPERIENCE IN THE UNITED KINGDOM AND ADDITIONAL LICENSING REQUIREMENTS
There is no commercial coalbed methane gas production in the United
Kingdom. The Company has no prior operating experience in the U.K. There can
be no assurance that the Company's experience in coalbed methane gas in the
United States will transfer to the United Kingdom or that it will be able to
work effectively in the United Kingdom. In order to fully develop the areas
covered by the Licenses, further licenses for development and exploration must
be obtained from the Department of Energy.
LIMITED CAPITAL AND PERSONNEL RESOURCES
The oil and gas business is capital intensive, and to properly evaluate and
develop a prospect requires significant personnel time. Evergreen is a small
independent oil and gas company with limited capital and personnel resources.
5
<PAGE>
UNCERTAINTY OF ESTIMATED RESERVES
This Prospectus contains estimates of reserves and future net revenues
which have been prepared by independent petroleum engineers. However, petroleum
engineering is not an exact science and involves estimates based on many
variable and uncertain factors. Estimates of reserves and future net revenues
prepared by different petroleum engineers may vary substantially depending, in
part, on the assumptions made and may be subject to adjustment either up or down
in the future. The actual amounts of production, revenues, taxes, development
expenditures, operating expenses and quantities of recoverable oil and gas
reserves to be encountered may vary substantially from the engineers' estimates.
Less than one half of Evergreen's future net revenue from its estimated proved
reserves is associated with wells that are currently producing oil and/or gas.
As a result, the independent petroleum engineers did not have the benefit of
production history for those reserves in making their estimate.
FLUCTUATIONS IN PRICES FOR OIL AND GAS
The prices paid to producers of oil and gas can and do fluctuate, sometimes
dramatically. The prices are affected by supplies of oil and gas, availability
of alternative fuels, political and economic conditions around the world,
weather conditions and a variety of other factors. Evergreen has no long term
contracts for the sale of its oil and gas. As a result, there can be no
assurance that the Company will be able to sell its oil and gas production or if
it can be sold, sell it at prices that permit the Company to be profitable.
CONFLICTS OF INTEREST
Certain of the Officers and Directors of the Company do not devote their
full time to the business of the Company. In addition, conflicts of interest
often arise in the conduct of an oil and gas business. There can be no
assurance that if conflicts of interest do arise that they will be resolved in
the manner most favorable to the Company and its shareholders. The Company's
Board of Directors has adopted a policy providing that any transactions between
the Company and its Officers, Directors, Principal Shareholders or Affiliates
will be on terms no less favorable to the Company than could have been obtained
from unaffiliated third parties on an arms-length basis.
INDUSTRY COMPETITION
The Company competes in all areas of its business with other companies most
of which have substantially larger financial, human and other resources. Such
competitors may be able to preclude the Company from participating in
opportunities and in many cases will be able to control the development of oil
and gas fields in a manner that optimizes their profitability but may adversely
affect the Company.
GOVERNMENTAL REGULATION
The production and sale of oil and gas are subject to a variety of federal,
state and local government regulations including regulations concerning the
prevention of waste, discharge of materials in the environment, conservation of
oil and natural gas, pollution, permits for drilling operations, drilling bonds,
reports concerning operations, spacing of wells, unitization and pooling of
properties and various other matters including taxes. In addition, many
jurisdictions have at various times imposed limitations on the production of oil
and gas by restricting the rate of flow for oil and gas wells below their actual
capacity to produce.
CONTROL BY CERTAIN OFFICERS, DIRECTORS AND AFFILIATES
The current Officers and Directors as a group, together with their
Affiliates, own 41.1% of the outstanding common stock of the Company. While
this percentage is less than a
6
<PAGE>
majority, it is sufficient to grant the Officers, Directors and Affiliates as a
group substantial control over the Company.
POSSIBLE VOLATILITY OF STOCK PRICE
Factors such as lower oil and gas prices or unsuccessful drilling results
could cause the market price of the Common Stock to fluctuate substantially.
Broad market fluctuations as well as general economic or political conditions
may also adversely affect the market price of the Common Stock.
DEPENDENCE UPON MANAGEMENT
The ability and experience of certain individuals who are engaged in the
management and operation of the Company are critical factors in the Company's
plans. The unexpected loss of the services of any of these individuals could
have a detrimental affect on the Company and its prospects.
DIVIDENDS
The Company has paid no cash dividends on its Common Stock and has no
present intention of paying cash dividends in the foreseeable future.
RECENT DEVELOPMENTS
PREFERRED STOCK
On December 8, 1994, the Company received $3.75 million through the private
placement, with Institutional Investors, of 3,750,000 shares of ten year term 8%
Convertible Preferred Stock, $1.00 par value ("the Preferred"), with proceeds to
be used for additional development of the Company's substantial oil and gas
leases in the Raton Basin of Colorado.
An additional 3,750,000 shares are to be issued upon completion of
Evergreen's first ten wells in the Raton Basin, subject to an independent
engineer's report establishing gross reserves averaging 1.8 Bcf per well after
60 days production. The Company intends to issue these shares in late July
1995. Proceeds will be used for additional wells and related gathering
facilities.
The Preferred is convertible into 899,281 shares of Common Stock at a
conversion price of $8.34 per share.
Annual cash dividends of 8% are payable quarterly. Evergreen may call the
Preferred at any time in whole or in part prior to the mandatory redemption
(minimum call being 20% of original issue), at par value, plus accrued
dividends.
Evergreen can require the conversion of all of the Preferred Stock into
Common Stock provided the Common Stock has traded at not less than $16 per share
for 30 consecutive days.
A mandatory Sinking Fund of $1,250,000 is due annually commencing at the
end of year 5. All outstanding shares of Preferred Stock must be redeemed by
Evergreen in ten years at par value, plus accrued dividends.
Evergreen has issued warrants which will be triggered and will become
exerciseable for 10 years at $8.34 per share if Evergreen qualifies for but does
not take the second $3.75 million (450,000 warrants) or if Evergreen exercises
all or part of its call option (up to 899,281 warrants).
The Preferred carries antidilution provisions, registration rights and,
under certain circumstances, voting rights.
7
<PAGE>
Evergreen has an authorized capitalization of 50,000,000 shares of no par
value common stock of which 5,672,159 shares were issued and outstanding as of
July 10, 1995.
PROPERTY CONSOLIDATION
In August 1994, Evergreen Management decided to focus the Company's
domestic efforts and resources in development of the Raton Basin of Colorado.
Evergreen is now engaged in an accelerated program of selling non-strategic
properties and reducing corporate overhead, with the ultimate goal being to own,
operate and develop key properties in just two states - Colorado and New Mexico.
To date, Management has reduced the number of states in which Evergreen
owns or operates oil and gas properties from eleven states to four states, with
no material impact on the Company's reserves or financial condition.
Annualized overhead reductions implemented to date exceed $600,000.
Over the next year, Evergreen expects to generate $2- 3 million from the
sale of non-strategic properties, with proceeds earmarked for drilling new wells
in the Raton Basin.
RATON BASIN
Since December 1991, Evergreen has acquired oil and gas leases covering
over 120,000 gross acres in the Raton Basin, Las Animas County in Southeastern
Colorado. This acreage position will support over 300 wells on 320 acre
spacing. Optimum spacing may be 160 acres, which would double the number of
drilling locations. Independent engineering estimates indicate reserve
potential of approximately 2 billion cubic feet of gas per well.
In August 1993 Evergreen formed a joint venture with PBI Fuels LP ("PBI").
PBI will participate with a 25 - 50% working interest in development of the
Project. Evergreen has retained the remaining 50 - 75% working interest and
serves as Operator.
In early 1994, Evergreen completed and production tested four evaluation
wells in the Vermejo coal intervals at depths ranging from 1,200 to 1,800 feet.
In addition to the Vermejo coals, the shallower Raton coals were present in
thicknesses believed to be commercial. Commencing in October 1994, an
additional six wells were drilled and completed and placed on production,
together with three of the original four wells - the fourth to be placed in
production when gathering facilities are available.
In January 1995, Evergreen and PBI completed a $4 million gathering system
designed to accommodate production from approximately 60 wells. The system is
tied in to a new 24 mile pipeline which was completed in December 1994.
Evergreen's first gas sales began in January, 1995. Combined gross
production from the first nine producing wells is now approximately 2 million
cubic feet per day.
In March 1995, the Bureau of Land Management designated approximately
67,000 acres of Evergreen's Raton Basin oil and gas leases as a Federal Unit
called the Spanish Peaks Unit. Evergreen has been named Unit Operator.
Formation of the Unit allows Evergreen to base development decisions within the
Unit on technical, geologic and geophysical data rather than the fulfillment of
term lease obligations.
Evergreen's Unit obligation is to establish commercial production through
the drilling of three new unit wells and the re-completion of an existing well,
with the work program to be conducted during the next 2 years.
8
<PAGE>
On March 28, 1995, drilling commenced on seven additional wells targeting
the Vermejo coal intervals at projected total depths of 1,000 to 2,100 feet.
Evergreen has a 50% working interest in these wells, which are located within
the newly formed Spanish Peaks Unit in close proximity to Evergreen's producing
wells and present gas gathering facilities. The new wells are expected to be
placed into production by July 10, 1995.
Evergreen also has a 75% working interest in the recompletion of an
existing well bore in the Raton coals. The well bore was recently acquired by
Evergreen from an unaffiliated third party.
The Raton recompletion and one of the new Vermejo wells will fulfill
Evergreen's 1995 work obligation to the Spanish Peaks Unit.
Evergreen plans a phased development of the Raton Basin acreage, including
new drilling and expansion of gathering and compression systems.
UNITED KINGDOM
In 1991 and 1992, the Company's wholly owned subsidiary, Evergreen
Resources (U.K.) Ltd., was awarded seven onshore U.K. hydrocarbon exploration
licenses totaling 2,570 square kilometers for the development of coalbed methane
gas and conventional hydrocarbons (the "Licenses"). The Licenses were
originally for six years and carried varying work commitments.
The Government has finalized revised onshore licensing arrangements and the
Company expects that by year-end new licenses will be awarded with an extended
term and that the majority of the acreage within the Company's existing licenses
will be retained.
During the period 1992 to 1994, Evergreen conducted seismic work and
drilled three wells on two of the licenses. The wells encountered 30' to 80' of
gross coal.
Two of the wells were hydraulically fracture stimulated and one was tested
for permeability. Following extensive production testing, none of the three
wells produced gas in economic quantities. The three wells are presently shut-
in.
The Company believes that substantial additional evaluation of the U.K.
licenses is warranted and intends to proceed once the new licensing arrangements
are finalized.
9
<PAGE>
SELLING SHAREHOLDERS
All of the securities offered hereby are to be offered for the account of
the security holders set forth below ("Selling Shareholders").
<TABLE>
<CAPTION>
Shares Beneficially Shares Beneficially
Owned Prior Owned
Name To Offering (1) After Offering
- ------------------------- ---------------------- -------------------
<S> <C> <C>
Johanna Abernathy 1,000 --
Barbara Adams 1,000 --
Kelly Bainter 1,000 --
Stephanie Basey 1,000 --
Alain Blanchard 65,170 (2) --
Bob D. Brady 10,250 --
John D. Buckley 2,000 --
Dennis R. Carlton 100,626 (2) 32,500
Caryl L. Clover 67,671 12,285
Timothy G. Corey 103,109 24,569
Tammy Frady 1,500 500
Bernette Guest 7,125 --
Janet Hamamoto 1,000 --
Joann Harper 1,000 --
Joyce Hirsch 2,000 --
Douglas Hollands 3,000 --
Jack Israel 1,500 500
Polly Johnson 1,000 --
Cheryl Lawson 1,148 148
Keither Martin 6,500 (2) --
Betsy McClure 3,000 500
Janet Monahan 2,075 75
John Nance 1,007 7
Steven Norman 1,000 --
Ann Oliver 1,500 500
Sharon Phillips 1,125 125
Paul Pourbaix 31,250 (3) --
Terry Robb 1,075 75
James C. Ryan, Jr. 1,341,082(2)(4) 1,278,582
John J. Ryan, III 225,032(2)(4) 200,032
Sandra Seibert 1,000 --
Mark S. Sexton 118,382 (2) 25,296
Ian M. Thomson 15,000 --
Christa Trujillo 1,000 --
Floyd Trujillo 4,000 --
Don Tucker 1,000 --
James S. Williams 81,540 (2) 13,950
---------------
TOTAL
- ----------------------
<FN>
(1) Shares of restricted common stock and/or underlying options and/or warrants
issued by the Company to Employees as compensation for oil and gas
property.
(2) Officer and/or Director of the Company.
(3) Former Director of the Company.
10
<PAGE>
(4) James C. Ryan, Jr. will own 20.7% and John J. Ryan, III will own 3.4% upon
conclusion of this offering. No other Selling Shareholder will own in
excess of 1% of shares outstanding after the offering.
</TABLE>
PLAN OF DISTRIBUTION
The Selling Shareholders are not restricted as to the prices at which they
may sell their shares and sales of such shares at less than the market price may
depress the market price of the Company's Common Stock. Further, the Selling
Shareholders are not restricted as to the number of shares which may be sold at
any one time, and it is possible that a significant number of shares could be
sold at the same time which may also have a depressive effect on the market
price of the Company's Common Stock. However, it is anticipated that the sale
of the Common Stock being offered hereby will be made through customary
brokerage channels either through broker-dealers acting as agents or brokers for
the seller, or through broker-dealers acting as principals, who may then resell
the shares in the over-the-counter market, or a private sale in the over-the-
counter market or otherwise, at negotiated prices related to prevailing market
prices and customary brokerage commissions at the time of the sales, or by a
combination of such methods. Thus, the period for sale of such shares by the
Selling Shareholders may occur over an extended period of time.
There are no contractual arrangements between or among any of the Selling
Shareholders and the Company with regard to the sale of the shares and no
professional underwriter in its capacity as such will be acting for the Selling
Shareholders.
EXPERTS
The financial statements and schedules incorporated by reference in this
Prospectus have been audited by BDO Seidman, independent certified public
accountants, to the extent and for the periods set forth in their report
incorporated herein by reference, and are incorporated herein in reliance upon
such report given upon the authority of said firm as experts in auditing and
accounting.
LEGAL OPINIONS
The legality of the Shares offered hereby will be passed upon for the Company by
John B. Wills, Attorney At Law.
11
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses of the offering, all of which are to be born by the
Registrant, are as follows:
<TABLE>
<CAPTION>
<S> <C>
SEC Filing Fee. . . . . . . . . . . . . . . . $ 2,037.53
Printing Expenses . . . . . . . . . . . . . . 500.00*
Accounting Fees and Expenses. . . . . . . . . 1,000.00*
Legal Fees and Expenses . . . . . . . . . . . 6,000.00*
Miscellaneous . . . . . . . . . . . . . . . . 462.47*
-------------
Total. . . . . . . . . . . . . . . . . . $ 10,000.00*
-------------
-------------
- -------------------------
<FN>
*Estimated
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The only charter provision, bylaw, contract, arrangement or statute under
which any Director or Officer of the Registrant is insured or indemnified in any
manner against any liability which he may incur in his capacity as such, is as
follows:
(a) Section 7-3-101(o) I, II, III, IV, V, VI, and VII of the Colorado
Corporation Code provides that each corporation shall have the following
powers:
"7-3-101 (o)(I) To indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in the
right of the corporation), by reason of the fact that he is or was a
director, officer, employee, fiduciary or agent of the corporation or
is or was serving at the request of the corporation as a director,
officer, employee, fiduciary or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against
expenses (including attorney fees), judgments, fines, and amounts paid
in settlement actually and reasonably incurred by him in connection
with such action, suit, or proceeding if he acted in good faith and in
a manner he reasonably believed to be in the best interests of the
corporation and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction or upon a plea of nolo contendere or its
equivalent shall not of itself create a presumption that the person
did not act in good faith and in a manner which he believed to be in
the best interests of the corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
"7-3-101 (o)(II) A corporation has the power to indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in
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its favor by reason of the fact that he is or was a director, officer,
employee, or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust, or other
enterprise against expenses (including attorney fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in the best interests of the
corporation; but no indemnification shall be made in respect of any
claim, issue or matter as to which such person has been adjusted to be
liable for negligence or misconduct in the performance of his duty to
the corporation unless and only to the extent that the court in which
such action or suit was brought determines upon application that,
despite the adjudication of liability, but in view of all
circumstances of the case, such person is fairly and reasonably
entitled to indemnification for such expenses which such court deems
proper.
"7-3-101 (o)(III) To the extent that a director, officer,
employee, fiduciary or agent of a corporation has been successful on
the merits in defense of any action, suit, or proceeding referred to
in subparagraph (I) or (II) of this paragraph (o) or in defense of any
claim, issue, or matter therein, he shall be indemnified against
expenses incurred by him in connection therewith.
"7-3-101 (o)(IV) Any indemnification under subparagraph (I) or
(II) of this paragraph (o) (unless ordered by a court) shall be made
by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee,
fiduciary or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in said subparagraph (I)
or (II). Such determination shall be made by the board of directors
by a majority vote of a quorum consisting of directors who were not
parties to such action, suit, or proceeding, or, if such a quorum is
not obtainable or even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or by the shareholders.
"7-3-101 (o)(V) Expenses (including attorneys' fees) incurred
in defending a civil or criminal action, suit, or proceeding may be
paid by the corporation in advance of the final disposition of such
action, suit or proceeding as authorized in subparagraph (IV) of this
paragraph (o) upon receipt of an undertaking by or on behalf of the
director, officer, employee, fiduciary or agent to repay such amount
unless it is ultimately determined that he is entitled to be
indemnified by the corporation as authorized in this paragraph (o).
"7-3-101 (o)(VI) The indemnification provided by this
paragraph (o) shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under the articles of
incorporation, any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, and any procedure provided for
by any of the foregoing, both as to action in his official capacity
and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director,
officer, employee, fiduciary or agent and shall inure to the benefit
of heirs, executors, and administrators of such a person.
"7-3-101 (o)(VII) A corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee, or agent of the corporation or who is or was serving at the
request of the corporation as a director, officer, employee, fiduciary
or agent of another corporation, partnership, joint venture, trust, or
other enterprise against any liability asserted against him and
incurred by him in any such capacity or arising out of his status as
such, whether or
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not the corporation would have the power to indemnify him against such
liability under the provision of this paragraph (o). "
(b) Articles VII and XIII of Registrant's Articles of Incorporation
provide as follows:
ARTICLE VII
INDEMNIFICATION OF DIRECTORS AND OTHERS
1. The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative
(other than an action by or in the right of the corporation), by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, or proceeding if he acted
in good faith and in a manner he 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 his conduce was unlawful. The
termination of any action, suit, or proceeding by judgment, order, settlement,
or conviction or upon a plea of NOLO CONTENDERE or its equivalent shall not of
itself create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in the best interests of the
corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
2. The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee, or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation; but no indemnification shall be made in respect of any claim,
issue, or matter as to which such person shall have been adjudged to be liable
for negligence or misconduct in the performance of his duty to the corporation
unless and only to the extent that the court in which such action or suit was
brought determines upon application that, despite the adjudication of liability,
but in view of all circumstances of the case, such person is fairly and
reasonably entitled to indemnification for such expenses which such court deems
proper.
3. To the extent that a director, officer, employee, or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in this article or in defense of any
claim, issue, or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
4. Any indemnification under paragraph 1 or 2 of this article (unless
ordered by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in said paragraphs 1 or 2 of this
article. Such determination shall be made by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or
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<PAGE>
proceeding, or, if such a quorum is not obtainable or even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or by the shareholders.
5. Expenses (including attorneys' fees) incurred in defending a civil or
criminal action, suit, or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit, or proceeding as authorized in
paragraph 4 of this article upon receipt of an undertaking by or on behalf of
the director, officer, employee, or agent to repay such amount unless it shall
ultimately as authorized in this article.
6. The indemnification provided by this article shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
the Articles of Incorporation, any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, and any procedure provided for by any of
the foregoing, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of heirs, executors, and administrators of such a person.
7. The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee, or agent of the corporation
or who is or was serving at the request of the corporation as a director,
officer, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise against any liability asserted against him and
incurred by him in any such capacity or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provision of this article.
8. A unanimous vote of each class of shares entitled to vote shall be
required to amend this article.
ARTICLE XIII
LIMITATION OF LIABILITY OF DIRECTORS
TO CORPORATIONS AND SHAREHOLDERS
No director shall be liable to the Corporation or any shareholder for
monetary damages for breach of fiduciary duty as a director, except for any
matter in respect of which such director (a) shall be liable under C.R.S.
Section 7-5-114 or any amendment thereto or successor provision thereto; (b)
shall have breached the director's duty of loyalty to the Corporation or its
shareholders; (c) shall have not acted in good faith; (d) shall have acted or
failed to act in a manner involving intentional misconduct or a knowing
violation of law; or (e) shall have derived an improper personal benefit.
Neither the amendment nor repeal of this Article, nor the adoption of any
provision in the Articles of Incorporation inconsistent with this Article, shall
eliminate or reduce the effect of this Article in respect of any matter
occurring prior to such amendment, repeal or adoption of any inconsistent
provision. This Article shall apply to the full extent now permitted by
Colorado law or as may be permitted in the future by changes or enactments in
Colorado law, including without limitation C.R.S. Section 7-2-102 and/or C.R.S.
Section 7-3-101.
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<PAGE>
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration Statement
pursuant to Item 601 of Regulation S-K:
EXHIBIT NO. TITLE
- ----------- -----
5 Opinion of John B. Wills, Attorney at Law, regarding
the legality of the securities being registered dated
June 16, 1993. *
24.1 Consent of John B. Wills, Attorney at Law, dated June
16, 1993. *
24.2 Consent of BDO Seidman dated June 14, 1993. *
24.3 Consent of BDO Seidman dated July 12, 1994.*
24.4 Consent of BDO Seidman dated July 11, 1995.
* Previously filed.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 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 Act and will be governed by the final adjudication of
such issue.
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;
(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.
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<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant of Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S3 and has duly caused this Post Effective
Amendment Number 2 to this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Denver, State of
Colorado on July 11, 1995.
EVERGREEN RESOURCES, INC.
Date: July 11, 1995 By: /s/ Mark S. Sexton
----------------------------------
Mark S. Sexton, President
Date: July 11, 1995 By: /s/ Kevin R. Collins
----------------------------------
Kevin R. Collins, Vice President,
Treasurer and Principal Financial
Officer, Principal Accounting
Officer
SIGNATURES
Date: July 11, 1995 By: /s/ James S. Williams
----------------------------------
James S. Williams, Director
Date: July 11, 1995 By: /s/ Mark S. Sexton
----------------------------------
Mark S. Sexton, Director
Date: July 11, 1995 By: /s/ Dennis R. Carlton
----------------------------------
Dennis R. Carlton, Director
Date: July 11, 1995 By: /s/ James C. Ryan, Jr.
----------------------------------
James C. Ryan, Jr., Director
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<PAGE>
Exhibit 24.4
CONSENT OF
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Evergreen Resources, Inc.
Denver, Colorado
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated June 15,
1995 relating to the consolidated financial statements and schedules of
Evergreen Resources, Inc. and subsidiaries appearing in the Company's annual
Report on Form 10-K for the year ended March 31, 1995.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
BDO SEIDMAN
Denver, Colorado
July 11, 1995
