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As filed with the Securities and Exchange Commission on December 12, 1996
SEC Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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
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(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 1940
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>
<S> <C> <C> <C> <C>
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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No Par Value 1,636,093 $ 6.88 Per $11,256,319.84 $3,411.00
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 10, 1996.
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-6 of the sequentially numbered pages of
this Registration Statement. This Registration Statement, including exhibits,
contains 26 pages.
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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
EVERGREEN RESOURCES, INC.
1,636,093 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 1,636,093 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 1,636,093 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 December 10, 1996, the closing sale price of the Company's Common Stock
as reported on the NASDAQ National Market System was $6.88.
_______________________
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 December ____, 1996.
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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 Shareholders. 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 Commission also maintains a Web Site that contains reports,
proxy and information statements and other information regarding registrants,
including the Company, that file electronically with the Commission at
http:www.sec.gov. In addition, copies of such documents and other information
are provided to Nasdaq and can be inspected at the Nasdaq offices maintained at
the National Association of Securities Dealers, Inc., 1735 'K' Street,
Washington, D.C. 20549.
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.
2. The Company's Quarterly Report on Form 10Q for the three months and six
months ended September 30, 1996.
3. The Company's Form 8-K dated August 21, 1996 and Form 8-K/A dated September
6, 1996 concerning the acquisition of certain limited partnership interests
owned by Energy Investors Fund, LP and Energy Investors Fund, II and the
merger of Powerbridge, Inc. with a subsidiary of the Company.
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.
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TABLE OF CONTENTS
Page
----
Available Information. . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Documents by Reference. . . . . . . . . . . 3
Prospectus Summary . . . . . . . . . . . . . . . . . . . . . . . . . 4
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Recent Developments. . . . . . . . . . . . . . . . . . . . . . . . . 8
Selling Shareholders . . . . . . . . . . . . . . . . . . . . . . . . 11
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . 11
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3
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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 60
producing oil and gas wells. During the three months ended September 30, 1996,
Evergreen's interest in producing wells generated net daily production of
approximately 8 million cubic feet of natural gas. 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.
THE OFFERING
Securities Offered 1,636,093 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
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RISK FACTORS
This Prospectus contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933. Such forward-looking statements may
be found in this section under "Prospectus Summary" and "Business and
Properties." Actual events or results could differ materially from those
discussed in the forward-looking statements as a result of various factors
including, without limitation, the risk factors set forth below and elsewhere in
this Prospectus. In addition to the other information contained in this
Prospectus, the following risk factors should be carefully considered:
VOLATILITY OF OIL AND GAS PRICES
The Company's revenues, profitability and future rate of growth are
substantially dependent upon prevailing market prices for natural gas and oil,
which can be extremely volatile and in recent years have been depressed by
excess domestic and imported supplies. In addition to market factors, actions
of state and local agencies, the United States and foreign governments, and
international cartels affect oil and gas prices. All of these factors are
beyond the control of the Company. These external factors and the volatile
nature of the energy markets make it difficult to estimate future prices of
natural gas and oil. There is no assurance that current price levels can be
sustained or that the Company will be able to produce oil or gas on an economic
basis in light of prevailing market prices. Any substantial or extended decline
in the price of natural gas would have a material adverse effect on the
Company's financial condition and results of operations, including reduced cash
flow and borrowing capacity and could reduce both the value and the amount of
the Company's oil and gas reserves.
FUTURE CAPITAL REQUIREMENTS
The Company will require additional equity or debt capital, as well as the
anticipated cash flow from operations of its developed properties, to fund the
full development of the Raton Basin. Any development of other properties,
including the Company's United Kingdom properties, is expected to require
substantial additional capital. There is no assurance that any required capital
will be available or that it will be available on terms acceptable to the
Company. Any inability of the Company to fund development of its properties
could cause the Company to lose all or portions of such properties through
failure to comply with minimum lease or license requirements or could require
the Company to farm out or otherwise dispose of or abandon such properties.
There is no assurance that the Company could successfully farm out or dispose of
any such properties.
EL PASO AGREEMENT
In August 1992, Evergreen entered into a series of agreements with El Paso
Field Services ("El Paso") concerning the connection of Evergreen's San Juan
Basin wells to El Paso's non-jurisdictional gathering system. Under the
agreements, El Paso paid for construction of a gathering pipeline to a central
point in Evergreen's producing area. Evergreen paid for construction of its own
gathering system to the wells beyond that point, which was sold to Associated
Natural Gas, Inc. in 1993. Evergreen dedicated 90% of its San Juan Basin
production to El Paso's gathering line for a period of 10 years following
completion of the line and agreed to deliver a minimum of 11,000 MMBtu per day
for five years to El Paso's gathering line or pay a shortfall payment of $0.25
per BBMtu. Production from the wells has been substantially less than 11,000
MMBtu per day and Evergreen has accrued a shortfall obligation of $2,031,000 as
of September 30, 1996 that may grow to in excess of $3.0 million by the end of
the five year period. El Paso is discussing alternate resolutions with
Evergreen, including the sale of El Paso's gathering line to Evergreen.
However, there is no assurance that an alternative agreement will be reached.
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SPECULATIVE NATURE OF OIL AND GAS EXPLORATION
The business of exploring for and, to a lesser extent, developing oil and
gas properties is an inherently speculative activity that involves a high degree
of business and financial risk. Property acquisition decisions generally are
based on various assumptions and subjective judgments that are speculative.
Although available geological and geophysical information can provide
information with respect to a potential oil or gas property, it is impossible to
determine accurately the ultimate production potential, if any, of a particular
property or well. Moreover, the successful completion of an oil or gas well
does not ensure a profit on the Company's investment therein. While the portion
of the Company's Raton Basin property in which the Company is currently
operating appears to present only moderate risk in this regard, the remainder of
the Raton Basin property, the Company's United Kingdom properties and any
properties in which the Company may invest in the future are or may be largely
untested and therefore subject to more substantial risk that they will be
uneconomic or marginally economic.
OPERATING HAZARDS
Oil and gas operations involve a high degree of risk. Natural hazards,
such as excessive underground pressures, may cause a costly or dangerous blowout
or make further operations on a well financially or physically impractical.
Equipment failures, human errors and other factors can result in the substantial
impairment or destruction of property, environmental damage and/or human injury.
The Company is subject to all the risks inherent in the exploration for, and
development of, oil and gas, including blowouts, fires and other casualties.
Any such event can result in the exposure of the Company to claims of
individuals or governmental agencies or to the loss or impairment of the value
of its properties, or both. The Company maintains insurance coverage as is
customary for entities of a similar size engaged in similar operations, but
losses can occur from uninsurable risks or in amounts in excess of existing
insurance coverage.
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.
The Company's reserve values remain sensitive to gas prices in the current
environment of fluctuating commodities prices.
REGULATION
The oil and gas industry is extensively regulated by federal, state and
local authorities. Legislation and regulation affecting the industry are under
constant review for amendment or expansion, raising the possibility of changes
that may effect, among other things, the pricing or marketing of oil and gas
production. Substantial penalties may be assessed for noncompliance with
various applicable statutes and regulations, and the overall regulatory burden
on the industry increases its cost of doing business and, in turn, decreases its
profitability.
State and local authorities regulate various aspects of oil and gas
drilling and production activities, including the drilling of wells (through
permit and bonding requirements), the spacing of wells, the unitization or
pooling of oil and gas properties, environmental matters, safety standards, the
sharing of markets, production limitations, plugging and abandonment, and
restoration.
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ENVIRONMENTAL CONSIDERATIONS
Various federal, state and local laws and regulations covering the
discharge of materials into the environment, or otherwise relating to the
protection of the environment, may affect the operations and costs of the
Company. For example, the Company operates under permits issued by the State of
Colorado to discharge water provided from its coalbed methane wells. Inasmuch
as such laws and regulations are frequently changed, the Company is unable to
predict the ultimate cost of compliance.
DEPENDANCE ON GATHERING AND TRANSPORTATION FACILITIES
Substantially all of the Company's current production consists of natural
gas. The marketablity of the Company s gas production depends in part upon the
availability, proximity and capacity of gas gathering systems, pipelines and
processing facilities. Federal and state regulation of gas and oil production
and transportation, general economic conditions, changes in supply and changes
in demand all could adversely affect the Company's ability to produce, gather
and transport its natural gas. If market factors were to change materially, the
financial impact on the Company could be substantial. The Company is a party to
two gas transportation contracts that require the Company to transport minimum
volumes. If the Company ships smaller volumes, it may be liable for damages
proportional to the shortfall. Under the El Paso agreements, the Company is
subject to claims for $2.031 million in shortfall payments through September 30,
1996, which may grow to $3 million by 1998. The Company is exploring ways to
resolve the El Paso claims, including the possibility of purchasing the subject
pipeline. There is no assurance that the El Paso claims can be resolved without
a loss to the Company. The Company expects to meet its volume obligations with
respect to the Raton Basin transportation agreement. While the Company believes
that its production in the Raton Basin will be more than adequate to meet volume
requirements, unforeseen events, including production problems or substantial
decreases in the price for natural gas, could cause the Company to ship less
than the required volumes, resulting in losses on the transportation contracts.
COMPETITION
Major oil companies, independent producers, institutional and individual
investors and various oil and gas income funds are actively seeking to acquire
oil and gas properties throughout the world, as well as the equipment, labor,
and materials required to operate such properties. Many of the Company's
competitors have financial and technological resources vastly exceeding those
available to the Company. Many oil and gas properties are sold in a competitive
bidding process in which the Company, if it is making an independent bid, may
lack technological information or expertise available to other bidders. There
is no assurance that the Company will be successful in acquiring and developing
profitable properties in the face of such competition.
OIL AND GAS LEASES
The Company's right to explore and produce oil and gas from its properties
derives from its oil and gas leases with the owners of the properties. There
are many version of oil and gas leases in use. The Company has acquired most of
its current leases from other companies who first acquired the leases from the
landowners. Oil and gas leases generally call for annual rental payments and
the payment of a percentage royalty on the oil and gas produced. Courts in many
states have interpreted oil and gas leases to include various implied covenants,
including the lessee's implied obligation to develop the lease diligently, to
prevent drainage of oil and gas by wells on adjacent land, to seek diligently a
market for production, and to operate prudently according to industry standards.
Oil and gas leases with similar language may be interpreted quite differently
depending on the state in which the property is located. Issues decided
differently in two states may not yet have been decided by the courts of a third
state, leading to uncertainty as to the proper interpretation. For instance,
royalty calculations can be substantially different from state
7
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to state, depending on each state's interpretation of typical lease language
concerning the costs of production. The Company believes it has followed
industry standards in interpreting its oil and gas leases in the states where it
operates. However, there can be no assurance that the leases will be free from
litigation concerning the proper interpretation of the lease terms. Adverse
decisions could result in material costs to the Company or the loss of one or
more leases.
TITLE TO PROPERTIES
As is customary in the oil and gas industry, the Company conducts only a
preliminary title examination at the time properties believed to be suitable for
drilling operations are acquired. Prior to the commencement of drilling
operations, a title examination of the drill site tract is conducted. The
Company believes that titles to its leasehold properties are good and defensible
in accordance with standards generally acceptable in the oil and gas industry,
but there is no assurance that the Company could defend title to its undeveloped
properties.
ACCOUNTING RISKS
The Company reports its operations using the full cost method of accounting
for gas and oil properties. Under full cost accounting rules, all productive
and non-productive costs incurred in connection with the exploration for and
development of oil and gas reserves are capitalized. Normal dispositions of oil
and gas properties are accounted for as adjustments of capitalized costs, with
no gain or loss recognized. Under full cost accounting rules, the net
capitalized costs of gas and oil properties may not exceed a "ceiling limit of
the present value of estimated future net revenues from proved reserves,
discounted at 10%, plus the lower of cost or fair market value of unproved
properties. If the net investment in oil and gas properties exceeds an amount
equal to the sum of (1) the standardized measure of discounted future net cash
flows from proved reserves, and (2) the lower of cost or fair market value of
properties in process of development and unexplored acreage, the excess is
charged to expense as additional depletion. Natural gas prices are often
volatile, varying substantially from quarter to quarter depending on weather
conditions, quantities of gas in storage, and supply variations. Since the
"ceiling test" must be applied quarterly, the Company may be forced to write
down the value of its oil and gas properties during a quarter when gas prices
are substantially below present levels. Full cost accounting rules would not
allow the Company to increase the value of its oil and gas properties in a
subsequent quarter when gas prices improved.
RECENT DEVELOPMENTS
UNDERWRITING
On October 28, 1996, the Company completed a public offering of its common
shares, whereby it sold 2,000,000 shares at $5.75 per share. Total proceeds,
net of underwriters' commissions, were approximately $10.3 million.
PBI ACQUISITION
Effective August 1, 1996, Evergreen acquired 100% of the outstanding common
stock of Powerbridge, Inc. and the limited partnership interests of Energy
Investor Funds I and II (collectively "PBI").
Evergreen acquired approximately 37 BCF of proved natural gas reserves,
approximately 24 BCF of which are developed, together with 25% working interest
in 120,000 gross acres and 50% interest in an associated gas gathering and
marketing system. All of these assets are located on Evergreen's present
acreage position in the Raton Basin. Evergreen issued 1,162,266 restricted
shares of Evergreen Common Stock and assumed $3.6 million of long term bank debt
owed to Hibernia National Bank.
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The acquisition of these assets increased Evergreen's interest to 100% in all
leases, reserves, production, and associated gathering facilities on the
Company's 120,000 gross acres in the Raton Basin.
At March 31, 1996, Evergreen reported 80 BCF of proved reserves, based on an
independent engineering study which has been updated. As of August 1, 1996,
Evergreen's proved reserves increased to 128 BCF, through the above reported
acquisition and other development activity in the Raton Basin. Approximately
59% of these proved reserves are developed. Present value of future net
revenues before income taxes discounted at 10% increased from $30 million at
March 31, 1996, to $51 million as of August 1, 1996.
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.
Since early 1994 Evergreen has drilled fifty-four coalbed methane gas wells in
the Vermejo coals at depths of 700 to 1,800 feet. Forty-one of these wells are
producing; twelve are being completed and will be placed into production during
January 1997. One well will be placed into production in mid-97 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 12.5 million cubic feet per day gross, or
approximately 11 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 one new unit obligation well by December 31, 1997.
Evergreen plans continual development of the Raton Basin acreage. Existing
gathering and compression systems are now being upgraded.
CIG AGREEMENT
On September 5, 1996, Evergreen (through its marketing joint venture with
Primero Gas Marketing Company) entered into an agreement with Colorado
Interstate Gas Company ("CIG") providing for CIG's construction of a gas
blending facility in Trinidad, Colorado, 10 miles from Evergreen's wells and a
firm transportation agreement for a ten year term. Evergreen's gas production
is relatively pure methane and to meet CIG pipeline specifications, CIG desires
to have small quantities of nitrogen blended with the methane. CIG will
construct a nitrogen blending facility capable of blending at least 30 million
cubic feet of gas per day, to be in service on or about January 1, 1997.
Evergreen has entered into a firm transportation agreement at CIG's current
tariff rates to transport gas to Dumas, Texas. Evergreen will be obligated to
transport at least 10,000 MMBtu per day (approximately 10.4 million cubic feet
of gas), and will be allowed to transport an additional 15,000 MMBtu per day at
a fixed charge. This transportation agreement will provide Evergreen access to
Midwest markets and the Company believes that it will receive higher gas prices
as a result.
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FALKLAND ISLANDS
Evergreen has a net 2% working interest in a consortium which has recently been
awarded an exploration license for Tranche A in the First Offshore Falkland
Islands Licensing Round.
Amerada Hess (Falklands Islands) Limited is Operator of the consortium, which
includes Fina Exploration Atlantic BV, Murphy South Atlantic Oil Company,
Teikoku Oil Co. Ltd., and Argos Evergreen Limited.
Argos Evergreen Limited, a 5% working interest holder in the consortium, is a
joint venture company formed in the Falkland Islands and owned 60% by Argos
Resources Limited and 40% by Evergreen Resources (UK) Limited, the UK subsidiary
of Evergreen Resources Inc.
Argos Resources Limited is a subsidiary of Argos Limited, a Falkland Islands
company which owns and operates a fleet of deep sea fishing vessels in the
Falkland Islands area.
The license covers 626 square miles and lies approximately 150 miles to the
north of the islands in water depths ranging up to 1,575 feet. This area
incorporates part of a major unexplored sedimentary basin which has not yet been
tested by drilling. It therefore represents a rare opportunity to be involved
during the early phase of exploration in an unexplored basin.
SAN JUAN BASIN
Effective June 1, 1996, Evergreen sold 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 received $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.
In addition to the production payment, Evergreen will receive additional 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 net have been
produced from the wells.
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.
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.
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
10
<PAGE>
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.
Evergreen is continuing to hold discussions with various funding sources,
including potential industry partners, for the purpose of resuming evaluation
and development of the Licenses.
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 to Owned
Name Offering (1) After Offering
- -------------------------------------- -------------------- -------------------
<S> <C> <C>
Energy Investors Fund, L.P. 378,952 - 0 -
Energy Investors Fund II, L.P. 1,063,764 - 0 -
James R. Clements 85,639 - 0 -
F. David Graeber 73,038 - 0 -
James W. Williams (2) 18,437 - 0 -
Roxanne Hicks Trustee 8,251 - 0 -
Hicks Living Trust
UA 10/25/95
Sandra H. Moses 1,210 - 0 -
James R. Macanliss 2,211 - 0 -
Christopher W. Vonder Hoya 2,211 - 0 -
Westlake Hills Presbyterian Church 1,000 - 0 -
Cornerstones Community Partnerships 1,000 - 0 -
Lake Highlands United Methodist Church 400 - 0 -
- -------------------------------------------
</TABLE>
(1) Shares of restricted common stock and/or shares underlying warrants issued
by the Company in exchange for oil and gas properties and conversion of
Convertible Preferred Stock.
(2) No relation to James S. Williams, a Director of the Company.
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.
11
<PAGE>
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.
12
<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:
SEC Filing Fee. . . . . . . . . . . . . . . . $ 3,411.00
Printing Expenses . . . . . . . . . . . . . . 500.00*
Accounting Fees and Expenses. . . . . . . . . 1,000.00*
Legal Fees and Expenses . . . . . . . . . . . 5,000.00*
Miscellaneous . . . . . . . . . . . . . . . . 89.00
-------------
Total. . . . . . . . . . . . . . . . . . $ 10,000.00*
-------------
-------------
- ---------------
*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.
II-1
<PAGE>
(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
II-2
<PAGE>
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 a 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.
II-3
<PAGE>
"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, or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not
II-4
<PAGE>
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.
II-5
<PAGE>
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 11, 1996.
24.1 Consent of John B. Wills, Attorney at Law, dated dated
December 11, 1996.
24.2 Consent of BDO Seidman, LLP dated December 11, 1996.
II-6
<PAGE>
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.
II-7
<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 S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado on December 11, 1996.
EVERGREEN RESOURCES, INC.
Date: December 11, 1996 By: /s/ Mark S. Sexton
-------------------------------------
Mark S. Sexton, President and
Chief Executive Officer
Date: December 11, 1996 By: /s/ Kevin R. Collins
-------------------------------------
Kevin R. Collins, Vice President,
Treasurer and Chief Financial Officer,
Principal Accounting Officer
SIGNATURES
Date: December 11, 1996 By: /s/ Dennis R. Carlton
-------------------------------------
Dennis R. Carlton, Director
Date: December 11, 1996 By: /s/ John J. Ryan III
-------------------------------------
John J. Ryan III, Director
Date: December 11, 1996 By: /s/ Mark S. Sexton
-------------------------------------
Mark S. Sexton, Director
Date: December 11, 1996 By: /s/ James S. Williams
-------------------------------------
James S. Williams, Director
II-8
<PAGE>
EXHIBIT 5
December 11, 1996
Evergreen Resources, Inc.
1000 Writer Square
1512 Larimer Street
Denver, CO 80202
RE: SEC REGISTRATION STATEMENT ON FORM S-3
Gentlemen:
I am counsel for Evergreen Resources, Inc., a Colorado corporation (the
"Company"), in connection with its proposed public offering under the
Securities Act of 1933, as amended, of 1,636,093 shares of the Company's
Common Stock through a Registration Statement on Form S-3 as to which this
opinion is a part, to be filed with the Securities and Exchange Commission
(the "Commission").
In connection with rendering my opinion as set forth below, I have
reviewed and examined originals or copies identified to my satisfaction of
the following:
(1) Certificate and Amended Certificate of Incorporation of the Company
as filed with the Secretary of State of the State of Colorado, as amended.
(2) Minute Book containing the written deliberations and resolutions of
the Board of Directors and Shareholders of the Company.
(3) The Registration Statement and the Preliminary Prospectus contained
within the Registration Statement.
(4) The other exhibits to the Registration Statement filed with the
Commission.
I have examined such other documents and records, instruments and
certificates of public officials, officers and representatives of the
Company, and have made such other investigations as I have deemed necessary
or appropriate under the circumstances.
<PAGE>
Evergreen Resources, Inc.
December 11, 1996
Page 2
Based upon the foregoing and in reliance thereon, it is my opinion that:
(i) the 1,636,093 shares of Common Stock, no par value, will, upon the
purchase, receipt of full payment, issuance and delivery in accordance with
the terms of the offering described in such Registration Statement, be duly
and validly authorized, legally issued, fully paid and non-assessable.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of my name under the caption "Legal
Opinions" in the Prospectus constituting a part thereof.
Very truly yours,
/s/ John B, Wills
John B. Wills
JBW/db
<PAGE>
EXHIBIT 24.1
CONSENT OF ATTORNEYS
Reference is made to the Registration Statement on Form S-3 of Evergreen
Resources, Inc.
I hereby consent to the use of my opinion concerning the legality of the
securities being registered dated December 11, 1996 filed as an exhibit to
the Registration Statement, and to being named in the Registration Statement
as having advised Evergreen Resources, Inc. as to the legality of its
securities to be sold.
JOHN B. WILLS
Attorney at Law
By: /s/John B. Wills
John B. Wills
Denver, Colorado
December 11, 1996
<PAGE>
Exhibit 24.2
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
December 11, 1996
