<PAGE>
As filed with the Securities and Exchange Commission on July 12, 1996
SEC Registration No. 33-87554
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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.
(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
(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
(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
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/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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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
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<S> <C> <C> <C> <C>
No Par Value 500,840 $5.75 Per $2,879,830.00 $993.04
Common Stock Shares Share
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</TABLE>
(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 December 15, 1994.
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.
500,840 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 500,840 shares of the Company's Common Stock which
are presently outstanding. 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 500,840 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 11, 1996, the closing sale price of the Company's Common Stock as
reported on the NASDAQ National Market System was $5.875.
-------------------
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.
-------------------
The date of this Prospectus is July ___, 1996.
<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, 1996.
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
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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............................................... 10
Experts............................................................ 10
Legal Opinions..................................................... 10
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 150 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 50
producing oil and gas wells. During the year ended March 31, 1996, Evergreen's
interest in producing wells generated net daily production of approximately 2.5
million cubic feet of natural gas and 30 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 500,840 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
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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.
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.
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,
5
<PAGE>
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 31.9% of the outstanding common stock of the Company. While
this percentage is less than a 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.
6
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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.
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.
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"). The Company
received an additional $2.745 million on July 26, 1995 by issuing an additional
3,750,000 shares. All proceeds have been used for development of the Company's
oil and gas leases in the Raton Basin of Colorado. (See "Description of Capital
Stock").
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 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.
Evergreen has an authorized capitalization of 50,000,000 shares of no par
value common stock of which 5,939,736 shares were issued and outstanding as of
July 12, 1996.
7
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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.
To date, Management has reduced the number of states in which Evergreen
owns or operates oil and gas properties from eleven states to two states, with
no material impact on the Company's reserves or financial condition.
Annualized overhead reductions implemented to date exceed $700,000.
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 500 wells on 160 acre
spacing. Independent engineering estimates indicate reserve potential of
approximately 1.5-2.0 billion cubic feet of gas per well.
In August 1993 Evergreen formed a joint venture with PBI Fuels LP ("PBI").
PBI has the right to 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.
Since early 1994 Evergreen has drilled and completed thirty-two coalbed
methane gas wells in the Vermejo coals at depths of 1,000 to 2,100 feet.
Evergreen has a 50%-100% interest in these wells, thirty-one of which are in
production - one to be placed in production when gathering facilities are
available.
Gas sales began in January 1995 and have improved as new wells have been
drilled to a present level of 8.3 million cubic feet per day gross, or
approximately 4.8 million cubic feet per day net to Evergreen.
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 remaining Unit commitment is to drill and evaluate two new unit
obligation wells by December 31, 1997.
Evergreen plans continual development of the Raton Basin acreage, including
drilling of ten new wells in July 1996, and expansion of gathering and
compression systems in Fall 1996.
SAN JUAN BASIN
Effective June 1, 1996, Evergreen sold, pending a favorable IRS ruling, its
working interests in six producing wells in the San Juan Basin, Rio Arriba
County, New Mexico. The wells qualify for the Section 29 tax credit.
The working interests were sold to a limited partnership owned and
controlled by Banque Paribas.
Evergreen will receive $53,000 cash and a volumetric production payment
under which Evergreen will receive 99% of the cash flow from the wells until
approximately 1.1 billion cubic feet of gas have been produced and sold net to
the well interests. At present production levels, the production payment will
end in 4 - 5 years.
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In addition to the production payment, Evergreen will receive monthly
payments based on production from the wells through 2002.
Evergreen has the option to repurchase the interests at any time between
December 31, 2002, and January 1, 2008, and will automatically revert to 75%
ownership in the interests if and when approximately 1.8 BCF have been produced
net to the wells.
If no favorable IRS ruling is obtained by November 30, 1996, the
transaction is subject to cancellation at the option of the purchaser.
Evergreen owns varying interests in sixteen additional wells in the San
Juan Basin, the majority of which are shut-in at present because of low
production volumes and gas prices.
UNITED KINGDOM
In 1991 and 1992 the Company's wholly owned subsidiary, Evergreen Resources
(U.K.) Ltd.("ERUK"), was awarded seven onshore U.K. hydrocarbon Exploration
Licenses for the development of coalbed methane gas and conventional
hydrocarbons (the "Licenses").
The Licenses provide ERUK with the largest onshore acreage position in the
U.K., and cover substantially all of six distinct onshore U.K. basins. Over
400,000 acres are considered prospective specifically for coalbed methane.
Selection of the Licensed areas was made after evaluating extensive
geological, petrophysical and measured methane gas content data bases. The
majority of the original data base was acquired through technology sharing
agreements with British Coal Corporation, who shared all relevant available data
on the six basins and granted ownership of this data to ERUK. ERUK has
augmented this data with proprietary seismic and coalbed methane well data and
also geologic data from the British Geologic Survey, and other sources.
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.
Under a new onshore Licensing regime implemented by the UK Department of
Trade and Industry (DTI), Evergreen will convert its existing onshore
Exploration Licenses to new onshore Licenses, called Petroleum Exploration and
Development Licenses.
These new Licenses will provide up to a 30 year term with periodic
relinquishment, approximately every 5 years, of up to 50% of the acreage subject
to future development plans.
Work commitments on the existing Licenses have been fulfilled through 1997
as a result of Evergreen's prior UK activity. There are no royalties or burdens
encumbering the Licenses.
9
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SELLING SHAREHOLDERS
All of the securities offered hereby are to be offered for the account of
the security holders set forth below ("Selling Shareholders").
Shares Shares
Beneficially Beneficially
Owned Prior to Owned
Name Offering (1) After Offering
- ------------------------------- ------------------ ------------------
Energy Investors Fund, L.P. 70,000 - 0 -
Energy Investors Fund II, L.P. 159,928 (2) 89,928
- -------------------------------
(1) Shares of restricted common stock issued by the Company in exchange for oil
and gas properties.
(2) Includes 89,928 shares underlying Convertible Preferred Stock not subject
to this registration.
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, LLP, 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.
10
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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:
SEC Filing Fee. . . . . . . . . . . . . . . . $ 993.04
Printing Expenses . . . . . . . . . . . . . . 500.00*
Accounting Fees and Expenses. . . . . . . . . 1,000.00*
Legal Fees and Expenses . . . . . . . . . . . 6,000.00*
Miscellaneous . . . . . . . . . . . . . . . . 1,506.96*
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Total. . . . . . . . . . . . . . . . . . $ 10,000.00*
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__________________
*Estimated
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 7-109-102, 103, 104, 105, 106, 107, 108, 109 and 110 of the
Colorado Business Corporation Act provides that each corporation shall have
the following powers:
"7-109-102. Authority to Indemnify directors
(1) Except as provided in subsection (4) of this section, a corporation
may indemnify a person made a party to a proceeding because the
person is or was a director against liability incurred in the
proceeding if:
(a) The person conducted himself or herself in good faith; and
(b) The person reasonably believed:
(I) In the case of conduct in an official capacity with the
corporation, that his or her conduct was in the
corporation's best interests; and
(II) In all other cases, that his or her conduct was at least
not opposed to the corporation's best interests; and
(c) In the case of any criminal proceeding, the person had no
reasonable cause to believe his or her conduct was unlawful.
(2) A director's conduct with respect to an employee benefit plan for
a purpose the director reasonably believed to be in the interests
of the participants in or beneficiaries of the plan is conduct
that satisfies the requirement of subparagraph (II) of paragraph
(b) of subsection (1) of this section. A director's conduct with
respect to an employee benefit plan for a purpose that the director
did not reasonably believe to be in the interests of the
participants in or beneficiaries of the plan shall be deemed not to
satisfy the requirements of paragraph (a) of subsection (1) of this
section.
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(3) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent
is not, of itself, determinative that the director did not meet
the standard of conduct described in this section.
(4) A corporation may not indemnify a director under this section:
(a) In connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or
(b) In connection with any other proceeding charging that the
director derived an improper personal benefit, whether or not
involving action in an official capacity, in which proceeding
the director was adjudged liable on the basis that he or she
derived an improper personal benefit.
(5) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation is limited to
reasonable expenses incurred in connection with the proceeding.
"7-109-103. Mandatory indemnification of directors
Unless limited by its articles of incorporation, a corporation
shall indemnify a person who was wholly successful, on the merits or
otherwise, in the defense of any proceeding to which the person was a
party because the person is or was a director, against reasonable
expenses incurred by him or her in connection with the proceeding.
"7-109-104. Advance of expenses to directors
(1) A corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance of
final disposition of the proceeding if:
(a) The director furnishes to the corporation a written
affirmation of the director's good faith belief that he or
she has met the standard of conduct described in section
7-109-102;
(b) The director furnishes to the corporation a written
undertaking, executed personally or on the director's behalf,
to repay the advance if it is ultimately determined that he
or she did not meet the standard of conduct; and
(c) A determination is made that the facts then known to those
making the determination would not preclude indemnification
under this article.
(2) The undertaking required by paragraph (b) of subsection (1) of
this section shall be an unlimited general obligation of the
director but need not be secured and may be accepted without
reference to financial ability to make repayment.
(3) Determinations and authorizations of payments under this section
shall be made in the manner specified in section 7-109-106.
"7-109-105. Court-ordered indemnification of directors
(1) Unless otherwise provided in the articles of incorporation, a
director who is or was a party to a proceeding may apply for
indemnification to the court conducting the proceeding or to
another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice the court
considers necessary, may order indemnification in the following
manner:
(a) If it determines that the director is entitled to mandatory
indemnification under section 7-109-103, the court shall order
indemnification, in which case the court shall also order the
corporation to pay the director's reasonable expenses incurred
to obtain court-ordered indemnification.
(b) If it determines that the director is fairly and reasonably
entitled to indemnification in view of all the relevant
circumstances, whether or not the director met the standard
of conduct set forth in section 7-109-102(1) or was adjudged
liable in the circumstances described in section 7-109-102(4),
the court may order such indemnification as the court deems
proper; except that the indemnification with respect to any
proceeding in which liability shall
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have been adjudged in the circumstances described in
section 7-109-102(4) is limited to reasonable expenses
incurred in connection with the proceeding and reasonable
expenses incurred to obtain court-ordered indemnification.
"7-109-106. Determination and authorization of indemnification of
directors
(1) A corporation may not indemnify a director under section 7-109-102
unless authorized in the specific case after a determination has
been made that indemnification of the director is permissible in
the circumstances because the director has met the standard of
conduct set forth in section 7-109-102. A corporation shall not
advance expenses to a director under section 7-109-104 unless
authorized in the specific case after the written affirmation and
undertaking required by section 7-109-104(1)(a) and (1)(b) are
received and the determination required by section 7-109-104(1)(c)
has been made.
(2) The determinations required by subsection (1) of this section
shall be made:
(a) By the board of directors by a majority vote of those present
at meeting at which a quorum is present, and only those
directors not parties to the proceeding shall be counted in
satisfying the quorum; or
(b) If a quorum cannot be obtained, by a majority vote of a
committee of the board of directors designated by the board
of directors, which committee shall consist of two or more
directors not parties to the proceeding; except that directors
who are parties to the proceeding may participate in the
designation of directors for the committee.
(3) If a quorum cannot be obtained as contemplated in paragraph (a) of
subsection (2) of this section, and a committee cannot be
established under paragraph (b) of subsection (2) of this section,
or, even if a quorum is obtained or a committee is designated, if
a majority of the directors constituting such quorum or such
committee so directs, the determination required to be made by
subsection (1) of this section shall be made:
(a) By independent legal counsel selected by a vote of the board
of directors or the committee in the manner specified in
paragraph (a) or (b) of subsection (2) of this section or, if
a quorum of the full board cannot be obtained and a committee
cannot be established, by independent legal counsel selected
by a majority vote of the full board of directors; or
(b) By the shareholders.
(4) Authorization of indemnification and advance of expenses shall be
made in the same manner as the determination that indemnification
or advance of expenses is permissible; except that, if the
determination that indemnification or advance of expenses is
permissible is made by independent legal counsel, authorization
of indemnification and advance of expenses shall be made by the
body that selected such counsel.
"7-109-107. Indemnification of officers, employees, fiduciaries, and
agents
(1) Unless otherwise provided in the articles of incorporation:
(a) An officer is entitled to mandatory indemnification under
section 7-109-103, and is entitled to apply for court-ordered
indemnification under section 7-109-105, in each case to the
same extent as a director;
(b) A corporation may indemnify and advance expenses to an
officer, employee, fiduciary, or agent of the corporation to
the same extent as to a director; and
(c) A corporation may also indemnify and advance expenses to an
officer, employee, fiduciary, or agent who is not a director
to a greater extent, if not inconsistent with public policy,
and if provided for by its bylaws, general or specific action
of its board of directors or shareholders, or contract.
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"7-109-108. Insurance
A corporation may purchase and maintain insurance on behalf of a person
who is or was a director, officer, employee, fiduciary, or agent of the
corporation, or who, while a director, officer, employee, fiduciary, or
agent of the corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee,
fiduciary, or agent of another domestic or foreign corporation or other
person or of an employee benefit plan, against liability asserted
against or incurred by the person in that capacity or arising from his
or her status as a director, officer, employee, fiduciary, or agent,
whether or not the corporation would have power to indemnify the person
against the same liability under section 7-109-102, 7-109-103, or
7-109-107. Any such insurance may be procured from any insurance
company designated by the board of directors, whether such insurance
company is formed under the laws of this state or any other jurisdiction
of the United States or elsewhere, including any insurance company in
which the corporation has an equity or any other interest through stock
ownership or otherwise.
"7-109-109. Limitation of indemnification of directors
(1) A provision treating a corporation's indemnification of, or advance
of expenses to, directors that is contained in its articles of
incorporation or bylaws, in a resolution of its shareholders or
board of directors, or in a contract, except an insurance policy,
or otherwise, is valid only to the extent the provision is not
inconsistent with sections 7-109-101 to 7-109-108. If the articles
of incorporation limit indemnification or advance of expenses,
indemnification and advance of expenses are valid only to the
extent not inconsistent with the articles of incorporation.
(2) Sections 7-109-101 to 7-109-108 do not limit a corporation's power
to pay or reimburse expenses incurred by a director in connection
with an appearance as a witness in a proceeding at a time when he
or she has not been made a named defendant or respondent in the
proceeding.
"7-109-110. Notice to shareholders of indemnification of director
If a corporation indemnifies or advances expenses to a director under
this article in connection with a proceeding by or in the right of the
corporation, the corporation shall give written notice of the
indemnification or advance to the shareholders with or before the notice
of the next shareholders' meeting. If the next shareholder action is
taken without a meeting at the instigation of the board of directors,
such notice shall be given to the shareholders at or before the time the
first shareholders signs a writing consenting to such action.
(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,
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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 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.
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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.
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 December 16, 1994. *
24.1 Consent of John B. Wills, Attorney at Law, dated dated December
16, 1994. *
24.2 Consent of BDO Seidman, LLP dated December 16, 1994. *
24.3 Consent of BDO Seidman, LLP dated July 11, 1995. *
24.4 Consent of BDO Seidman, LLP dated July 12, 1996.
* Previously filed.
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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.
(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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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 registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Denver, State of
Colorado on July 12, 1996.
EVERGREEN RESOURCES, INC.
Date: July 12, 1996 By: /s/ Mark S. Sexton
-------------------------------------
Mark S. Sexton, President and
Chief Executive Officer
Date: July 12, 1996 By: /s/ Kevin R. Collins
-------------------------------------
Kevin R. Collins, Vice President,
Treasurer and Principal Financial
Officer, Principal Accounting Officer
SIGNATURES
Date: July 12, 1996 By: /s/ Dennis R. Carlton
-------------------------------------
Dennis R. Carlton, Director
Date: July 12, 1996 By: /s/ John J. Ryan III
-------------------------------------
John J. Ryan III, Director
Date: July 12, 1996 By: /s/ Mark S. Sexton
-------------------------------------
Mark S. Sexton, Director
Date: July 12, 1996 By: /s/ James S. Williams
-------------------------------------
James S. Williams, Director
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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 May 24,
1996 relating to the consolidated financial statements of Evergreen Resources,
Inc. and subsidiaries appearing in the Company's annual Report on Form 10-K for
the year ended March 31, 1996.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
BDO SEIDMAN, LLP
Denver, Colorado
July 12, 1996
