UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1 )*
EVERGREEN RESOURCES, INC.
(Name of Issuer)
COMMON STOCK, NO PAR VALUE
(Title of Class of Securities)
299900 30 8
(CUSIP Number)
Gerald DeNotto, EIF Acquisition L.L.C.
1075 Noel Avenue, Wheeling, Illinois 60090 (864) 520-3212
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
January 8, 1997
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D. and is filing this schedule because of Rule 13d-
l(b)(3) or (4), check the following box .
NOTE: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13a-l(a) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all OTHER PROVISIONS of the Act (however, see the
Notes).
SEC 1746(12-91)
<PAGE>
SCHEDULE 13D
CUSIP NO. 299900 30 8 PAGE 2 OF 21 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S INDENTIFICATION NO.OF ABOVE PERSON
Gerald R. Forsythe
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF GROUP (a)
(b)X
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7 SOLE VOTING POWER
0
NUMBER OF 8 SHARED VOTING POWER
SHARES 1,592,716
BENEFICIALLY
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH
10 SHARED DISPOSITIVE POWER
1,592,716
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,592,716
12 CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.7%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP 299900 30 PAGE 3 OF 21 PAGES
NO. 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S INDENTIFICATION NO.OF ABOVE PERSON
Energy Investors Fund, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF GROUP (a)
(b)X
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF 8 SHARED VOTING POWER
SHARES 378,952
BENEFICIALLY
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH
10 SHARED DISPOSITIVE POWER
378,952
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
378,952
12 CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.05%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP 299900 30 PAGE 4 OF 21 PAGES
NO. 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S INDENTIFICATION NO.OF ABOVE PERSON
Energy Investors Fund, II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF GROUP (a)
(b)X
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF 8 SHARED VOTING POWER
SHARES 1,213,764
BENEFICIALLY
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH
10 SHARED DISPOSITIVE POWER
1,213,764
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,213,764
12 CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.75%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP 299900 30 PAGE 5 OF 21 PAGES
NO. 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S INDENTIFICATION NO.OF ABOVE PERSON
Energy Investors Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF GROUP (a)
(b)X
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF 8 SHARED VOTING POWER
SHARES 378,952
BENEFICIALLY
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH
10 SHARED DISPOSITIVE POWER
378,952
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
378,952
12 CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.05%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP 299900 30 PAGE 6 OF 21 PAGES
NO. 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S INDENTIFICATION NO.OF ABOVE PERSON
Energy Investors Partners, II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF GROUP (a)
(b)X
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF 8 SHARED VOTING POWER
SHARES 1,213,764
BENEFICIALLY
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH
10 SHARED DISPOSITIVE POWER
1,213,764
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,213,764
12 CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.75%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP 299900 30 PAGE 7 OF 21 PAGES
NO. 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S INDENTIFICATION NO.OF ABOVE PERSON
EIF Investors, Inc.
06-1224170
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF GROUP (a)
(b)X
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF 8 SHARED VOTING POWER
SHARES 1,592,716
BENEFICIALLY
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH
10 SHARED DISPOSITIVE POWER
1,592,716
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,592,716
12 CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.7%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP 299900 30 PAGE 8 OF 21 PAGES
NO. 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S INDENTIFICATION NO.OF ABOVE PERSON
EIF Acquisition L.L.C.
36-4085847
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF GROUP (a)
(b)X
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF 8 SHARED VOTING POWER
SHARES 1,592,716
BENEFICIALLY
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH
10 SHARED DISPOSITIVE POWER
1,592,716
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,592,716
12 CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.7%
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP 299900 30 PAGE 9 OF 21 PAGES
NO. 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S INDENTIFICATION NO.OF ABOVE PERSON
Indeck Capital, Inc.
36-3960183
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF GROUP (a)
(b) X
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF 8 SHARED VOTING POWER
SHARES 1,592,716
BENEFICIALLY
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH
10 SHARED DISPOSITIVE POWER
1,592,716
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,592,716
12 CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.7%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE> PAGE 10 OF 21 PAGES
Item 5. Interest in Securities of the Issuer.
(a) As of the date of this statement, Gerald R.
Forsythe ("Forsythe"), through
(i) Indeck Capital, Inc., a Delaware
corporation;
(ii) EIF Acquisition L.L.C., a Delaware limited
liability company;
(iii) EIF Investors, Inc., a Delaware corporation
(the entities named in clauses (i) through (iii), the "Forsythe
Companies");
(iv) Energy Investors Partners II, L.P.
("Partners II"), a Delaware limited partnership (as general
partner of Energy Investors Fund II, L.P., a Delaware limited
partnership ("Fund II")); and
(v) Energy Investors Partners, L.P.
("Partners I"), a Delaware limited partnership (as general
partner of Energy Investors Fund, L.P., a Delaware limited
partnership ("Fund I"),
is the indirect beneficial owner of 1,592,716 shares of the
common stock ("Common Stock") of Evergreen Resources, Inc., a
Colorado corporation and the issuer to which this statement
relates ("Evergreen"), which ownership represents 16.7% of the
Common Stock. The Common Stock indirectly beneficially owned by
Forsythe is owned directly by Fund I and Fund II.
Fund I is the direct beneficial owner of 378,952 shares
of Common Stock, which ownership represents 4.05% of the
outstanding Common Stock.
Fund II is the direct beneficial owner of 1,213,764
shares of Common Stock, which ownership represents 12.75% of the
outstanding Common Stock.
(b) Forsythe and the Forsythe Companies have shared
voting and dispositive power with respect to 1,592,716 shares
(16.7%) of the Common Stock. Fund I and Partners I have shared
voting and dispositive power with respect to 378,952 shares
(4.05%) of the Common Stock. Fund II and Partners II have shared
voting and dispositive power with respect to 1,213,764 shares
(12.75%) of the Common Stock.
(c) On January 8, 1997, Fund II reached final
agreement with Evergreen on the terms pursuant to which Fund II
would agree to convert into Common Stock the 1,500,000 shares of
8% Convertible Preferred Stock of Evergreen (the "Preferred
Stock") held by Fund II. Pursuant to the January 8 agreement
(the "Conversion Agreement"), the conversion was effected at a
per share conversion price of $6.50, which resulted in the
issuance by Evergreen to Fund II of 230,770 shares of Common
<PAGE> PAGE 11 OF 21 PAGES
Stock. At the time of conversion of the Preferred Stock,
Evergreen also paid to Fund II, in shares of Common Stock, the
accrued but unpaid dividend in respect of the Preferred Stock.
The amount of the dividend was $20,000, and the number of shares
issued in lieu of cash in payment of the dividend was 3,077. The
conversion of the Preferred Stock, pursuant to the Conversion
Agreement, was given financial effect as of December 1, 1996.
As an inducement for Fund II to convert the Preferred
Stock, Evergreen agreed to issue to Fund I and Fund II an
aggregate of 50,000 5-year warrants, each to purchase one share
of Common Stock at an exercise price of $7.80 per share. Of the
50,000 warrants, 14,452 were issued to Fund I, and 35,548 were
issued to Fund II. In addition, Evergreen agreed to issue to
Fund II 150,000 5-year warrants, each to purchase one share of
Common Stock at an exercise price of $7.00 per share (the "$7.00
Warrants").
Upon conversion of the Preferred Stock, the 5 Class B
Warrants of Evergreen held by Fund II, each to purchase 35,971.23
shares of the Common Stock (which were to vest in the event that
Evergreen did not redeem the Preferred Stock in accordance with
the terms of the certificate of designations relating to the
Preferred Stock) expired by their terms.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
Pursuant to the terms of the Conversion Agreement, if
Evergreen files a registration statement with respect to any of
the Common Stock in the first quarter of 1997, the shares of
Common Stock issuable upon exercise of the $7.00 Warrants will be
registered in connection therewith.
The form of the Common Stock warrant (to be used with
respect to the issuance of the $7.00 Warrants and the $7.80
Warrants) is attached to this statement as an exhibit.
Item 7. Material to be Filed as Exhibits.
Standard Form Warrant for $7.00 Warrants and $7.80
Warrants
<PAGE> PAGE 12 OF 21 PAGES
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information contained in
this statement is true, complete and correct.
Date: February 5, 1997
/s/ Gerald F. DeNotto
Gerald F. DeNotto
Authorized Representative for
Gerald R. Forsythe
<PAGE> PAGE 13 OF 21 PAGES
Exhibit: Standard Form Warrant for $7.00 Warrants and $7.80
Warrants
EVERGREEN RESOURCES, INC.
Incorporated Under the Laws of the State of Colorado
No. 199__-__ _______________ Common Stock
Purchase Warrants
CERTIFICATE FOR COMMON STOCK
PURCHASE WARRANTS
Evergreen Resources, Inc., a Colorado corporation (the
"Company") hereby certifies that ___________________ or his
registered assigns registered on the books of the Company
maintained for such purposes as the registered holder hereof (the
"Holder"), for value received, is entitled to purchase from the
Company the number of fully paid and nonassessable shares of
Common Stock, no par value, of the Company, stated above at the
purchase price of $____ per Share (the "Exercise Price") upon the
terms and conditions herein provided.
1. EXERCISE OF WARRANTS
(a) Subject to subsection (b) of this Section 1, upon
presentation and surrender of this Warrant Certificate, with the
attached Purchase Form duly executed, at the principal office of
the Company at Denver, Colorado, or at such other place as the
Company may designate by notice to the Holder hereof, together
with a certified or bank cashier's check payable to the order of
the Company in the amount of the Exercise Price times the number
of shares being purchased, the Company shall deliver to the
Holder hereof, as promptly as practicable, certificates
representing the Shares being purchased. Evergreen Resources,
Inc. common stock valued at market price as reported by NASDAQ on
date of exercise may be used by the Holder in partial or full
payment of the exercise price. This Warrant may be exercised in
whole or in part. In case of exercise hereof in part only, the
Company, upon surrender hereof, will deliver to the Holder a new
Warrant Certificate or Warrant Certificate of like tenor
entitling the Holder to purchase the number of Shares as to which
this Warrant has not been exercised.
(b) This Warrant may be exercised in whole or in part
at any time prior to 5:00 o'clock P.M., Mountain Standard Time,
on __________.
2. EXCHANGE AND TRANSFER OF WARRANT
This Warrant at any time prior to the exercise hereof, upon
presentation and surrender to the Company, may be exchanged,
alone or with other Warrants of like tenor registered in the name
of the Holder, for another Warrant or other Warrants of like
tenor in the name of such Holder exercisable for the same
<PAGE> PAGE 14 OF 21 PAGES
aggregate number of Shares as the Warrant or Warrants
surrendered.
3. RIGHTS AND OBLIGATIONS OF WARRANT HOLDER
(a) The Holder of this Warrant Certificate shall not,
by virtue hereof, be entitled to any rights of a stockholder in
the Company, either at law or in equity; provided, however, in
the event that any certificate representing the Shares issued to
the Holder hereof upon exercise of this Warrant, such Holder
shall, for all purposes, be deemed to have become the holder of
record of such Shares on the date on which this Warrant
Certificate, together with a duly executed Purchase Form, was
surrendered and payment of the Exercise Price was made,
irrespective of the date of delivery of such Share certificate.
The rights of the Holder of this Warrant are limited to those
expressed herein and the Holder of this Warrant, by its
acceptance hereof, consents to and agrees to be bound by and to
comply with all the provisions of this Warrant Certificate.
(b) No holder of this Warrant Certificate, as such,
shall be entitled to vote or receive dividends or to be deemed
the holder of Shares for any purpose, nor shall anything
contained in this Warrant Certificate be construed to confer upon
any Holder of this Warrant Certificate any of the rights of a
stockholder of the Company or any right to vote, give or withhold
consent to any action by the Company, whether upon any
recapitalization, issue of stock, reclassification of stock,
consolidation, merger, conveyance or otherwise, receive notice of
meetings or other action affecting stockholders (except for
notices provided for herein), receive dividends, subscription
rights, or otherwise, until this Warrant shall have been
exercised and the Shares purchasable upon the exercise thereof
shall have become deliverable as provided herein; provided,
however, that any such exercise on any date when the stock
transfer books of the Company shall be closed shall constitute
the person or persons in whose name or names the certificate or
certificates for those Shares are to be issued as the record
holder or holders thereof for all purposes at the opening of
business on the next succeeding day on which such stock transfer
books are open, and the Warrant surrendered shall not be deemed
to have been exercised, in whole or in part as the case may be,
until the next succeeding day on which stock transfer books are
open for the purpose of determining entitlement to dividends on
the Company's common stock.
4. SHARES UNDERLYING WARRANTS
The Company covenants and agrees that all Shares delivered
upon exercise of this Warrant shall, upon delivery and payment
therefor, be duly and validly authorized and issued, fully-paid
and non-assessable, and free from all stamp taxes, liens, and
charges with respect to the purchase thereof. In addition, the
Company agrees at all times to reserve and keep available an
<PAGE> PAGE 15 OF 21 PAGES
authorized number of Shares sufficient to permit the exercise in
full of this Warrant.
5. DISPOSITION OF WARRANTS OR SHARES
(a) The holder of this Warrant Certificate and any
transferee hereof or of the Shares issuable upon the exercise of
the Warrant Certificate, by their acceptance hereof, hereby
understand and agree that the Warrant and the Shares issuable
upon the exercise hereof, have not been registered under either
the Securities Act of 1933 (the "Act") or applicable state
securities laws (the "State Acts") and shall not be sold,
pledged, hypothecated, donated, or otherwise transferred (whether
or not for consideration) except upon the issuance to the Company
of a favorable opinion of counsel or submission to the Company of
such evidence as may be satisfactory to counsel to the Company,
in each such case, to the effect that any transferee thereof
deliver to the Company its written agreement to accept and be
bound by all of the terms and conditions of this Warrant
Certificate.
(b) The stock certificates of the Company that will
evidence the shares of Common Stock with respect to which this
Warrant may be exercisable will be imprinted with a conspicuous
legend in substantially the following form:
"The securities represented by this
certificate have
not been registered under either Securities Act of
1933 (the "Act") or applicable state securities laws
(the "State Acts") and shall not be sold, pledged,
hypothecated, donated for consideration by the holder
except upon the issuance to the Company of a favorable
opinion of its counsel or submission to the Company of
such other evidence as may be satisfactory to counsel
of the Company, in each such case, to the effect that
any such transfer shall not be in violation of the Act
and the State Acts."
The Company has not agreed to register any of the holder's
shares of Common Stock of the Company with respect to which this
Warrant may be exercisable for distribution in accordance with
the provisions of the Act or the State Acts and, the Company has
not agreed to comply with any exemption from registration under
the Act or the State Acts for the resale of the holder's shares
of Common Stock of the Company with respect to which this Warrant
may be exercised. Hence, it is the understanding of the holders
of this Warrant that by virtue of the provisions of certain rules
respecting "restricted securities" promulgated by the SEC, the
shares of Common Stock of the Company with respect to which this
Warrant may be exercisable may be required to be held
indefinitely, unless and until registered under the Act and the
State Acts, unless an exemption from such registration is
available, in which case the holder may still be limited as to
the number of shares of Common Stock of the Company with respect
to which this Warrant may be exercised that may be sold.
<PAGE> PAGE 16 OF 21 PAGES
6. LOSS OR MUTILATION
On receipt by the Company of evidence satisfactory as to the
ownership of and the loss, theft, destruction or mutilation of
any Warrant Certificate, the Company shall execute, countersign
and deliver in lieu thereof, a new Warrant Certificate
representing an equal aggregate number of Warrants. In the case
of loss, theft or destruction of any Warrant Certificate, the
individual requesting issuance of a new Warrant Certificate shall
be required to indemnify the Company in an amount satisfactory to
each of them. In the event a Warrant Certificate is mutilated,
such Certificate shall be surrendered and canceled by the Company
prior to delivery of a new Warrant Certificate. Applicants for a
new Warrant Certificate shall also comply with such other
regulations and pay such other reasonable charges as the Company
may prescribe.
7. ADJUSTMENT OF EXERCISE PRICE AND SHARES
After each adjustment of the Exercise Price pursuant to this
Subsection 7, the number of shares of Common Stock purchasable on
the exercise of each Warrant shall be the number derived by
dividing such adjusted Exercise Price into the original Exercise
Price. The Exercise Price shall be subject to adjustment as
follows:
(a) In the event, prior to the expiration of the
Warrants by exercise or by their terms, the Company shall issue
any shares of its Common Stock as a share dividend or shall
subdivide the number of outstanding shares of Common Stock into a
greater number of shares, then, in either of such events, the
Exercise Price per share of Common Stock purchasable pursuant to
the Warrants in effect at the time of such action shall be
reduced proportionately and the number of shares purchasable
pursuant to the Warrants shall be increased proportionately.
Conversely, in the event the Company shall reduce the number of
shares of its outstanding Common Stock by combining such shares
into a smaller number of shares, then, in such event, the
Exercise Price per share purchasable pursuant to the Warrants in
effect at the time of such action shall be increased
proportionately and the number of shares of Common Stock at that
time purchasable pursuant to the Warrants shall be decreased
proportionately. Any dividend paid or distributed on the Common
Stock in shares of any other class of the Company or securities
convertible into shares of Common Stock shall be treated as a
dividend paid in Common Stock to the extent that shares of Common
Stock are issuable on the conversion thereof.
(b) In the event the Company, at any time while the
Warrants shall remain unexpired and unexercised, shall sell all
or substantially all of its property, or dissolves, liquidates or
winds up its affairs, prompt, proportionate, equitable, lawful
and adequate provision shall be made as part of the terms of any
such sale, dissolution, liquidation or winding up such that the
holder of a Warrant may thereafter receive, on exercise thereof,
<PAGE> PAGE 17 OF 21 PAGES
in lieu of each share of Common Stock of the Company which he
would have been entitled to receive, the same kind and amount of
any share, securities, or assets as may be issuable,
distributable or payable on any such sale, dissolution,
liquidation or winding up with respect to each share of Common
Stock of the Company; provided, however, that in the event of any
such sale, dissolution, liquidation or winding up, the right to
exercise this Warrant shall terminate on a date fixed by the
Company, such date to be not earlier than 5:00 p.m., Mountain
Standard Time, on the 30th day next succeeding the date on which
notice of such termination of the right to exercise the Warrants
has been given by mail to the holders thereof at such addresses
as may appear on the books of the Company.
(c) Notwithstanding the provisions of this Section 7,
no adjustment on the Exercise Price shall be made whereby such
Price is adjusted in an amount less than $.005 or until the
aggregate of such adjustments shall equal or exceed $.005.
(d) In the event, prior to the expiration of the
Warrants by exercise or by their terms, the Company shall
determine to take a record of the holders of its Common Stock for
the purpose of determining shareholders entitled to receive any
share dividend or other right which will cause any change or
adjustment in the number, amount, price or nature of the shares
of Common Stock or other, securities or assets deliverable on
exercise of the Warrants pursuant to the foregoing provisions,
the Company shall give to the Registered Holders of the Warrants
at the addresses as may appear on the books of the Company at
least 15 days' prior written notice to the effect that it intends
to take such a record. Such notice shall specify the date as of
which such record is to be taken; the purpose for which such
record is to be taken; and the number, amount, price and nature
of the Common Shares or other shares, securities or assets which
will be deliverable on exercise of the Warrants after the action
for which such record will be taken has been completed. Without
limiting the obligation of the Company to provide notice to the
Registered Holders of the Warrant Certificates of any corporate
action hereunder, the failure of the Company to give notice shall
not invalidate such corporate action of the Company.
(e) No adjustment of the Exercise Price shall be made
as a result of or in connection with (i) the issuance of Common
Stock of the Company pursuant to options, warrants and share
purchase agreements outstanding or In effect on the date hereof,
(ii) the establishment of additional option plans of the Company,
the modification, renewal or extension of any plan now in effect
or hereafter created, or the issuance of Common Stock on exercise
of any options pursuant to such plans, or (iii) the issuance of
Common Stock in connection with an acquisition or merger of any
type (therefore, the antidilution provisions of this Section 7
will not apply in the event a merger or acquisition is undertaken
by the Company), in connection with compensation arrangements for
officers, employees or agents of the Company or any subsidiary,
and the like.
<PAGE> PAGE 18 OF 21 PAGES
Before taking any action which would cause an
adjustment reducing the Exercise Price below the then par value
of the shares of Common Stock issuable upon exercise of the
Warrants, the Company will take any corporate action which may,
in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and
nonassessable shares of such Common Stock at such adjusted
Exercise Price.
Upon any adjustment of the Exercise Price required
to be made pursuant to this Section 7, the Company within 30 days
thereafter shall (i) cause to be filed a certificate setting
forth the pertinent Exercise Price after such adjustment and
setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based, and (ii) cause to
be mailed to each of the Registered Holders of the Warrant
Certificates written notice of such adjustment.
8. SURVIVAL
The various rights and obligations of the Holder hereof as
set forth herein shall survive the exercise of the Warrants
represented hereby and the surrender of this Warrant Certificate.
9. NOTICES
Whenever any notice, payment of any purchase price, or other
communication is required to be given or delivered under the
terms of this Warrant, it shall be in writing and delivered by
hand delivery or United States registered or certified mail,
return receipt requested, postage prepaid, and will be deemed to
have been given or delivered on the date such notice, purchase
price or other communication is so delivered or posted, as the
case may be; and, if to the Company, it will be addressed to the
address specified in Section 1 hereof, and if to the Holder, it
will be addressed to the registered Holder at its, his or her
address as it appears on the books of the Company.
DATE: EVERGREEN RESOURCES, INC.
BY:______________________
Mark S. Sexton
President and CEO
ATTEST:
By: ____________________
J. Keither Martin
Secretary
<PAGE> PAGE 19 OF 21 PAGES
EVERGREEN RESOURCES, INC.
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM: tenants in common UNIF GIFT MIN ACT: Custodian :
TEN ENT: as tenants by the entireties (Cust) (Minor)
JT TEN: as joint tenants with right of under Uniform Gifts to
survivorship and not as tenants Minors Act
in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF ASSIGNMENT
(To Be Executed by the Registered Holder if He Desires to Assign
Warrants Evidenced by the Within Warrant Certificate)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
Warrants, evidenced by the
within Warrant Certificate an does hereby irrevocably constitute
and appoint Attorney to transfer the said
Warrants evidenced by the within Warrant Certificate on the books
of the Company, with full power of substitution.
Dated:
Signature
NOTICE: The above signature must correspond with the name as
written upon the face of the within Warrant Certificate
in every particular, without alteration or enlargement
or any change whatsoever.
Signature Guaranteed:
<PAGE> PAGE 20 OF 21 PAGES
FORM OF ELECTION TO PURCHASE
(To Be Executed by the Holder H He Desires to Exercise Warrants
Evidenced by the Within Warrant Certificate)
To Evergreen Resources, Inc.:
The undersigned hereby irrevocably elects to exercise
Warrants, evidenced by the within Warrant
Certificate for, and to purchase thereunder, full
shares of Common Stock issuable upon exercise of said Warrants
and delivery of $ .
The undersigned requests that certificates for such shares be
issued in the name of:
PLEASE INSERT SOCIAL SECURITY
OR TAX IDENTIFICATION NUMBER
(Please Print name and address)
If said number of Warrants shall not be all the Warrants
evidenced by the within Warrant Certificate, the undersigned
requests that a new Warrant Certificate evidencing the Warrants
not so exercised be issued in the name of and delivered to:
(Please Print name and address)
Dated:
Signature
NOTICE: The above signature must correspond with the name as
written upon the face of the within Warrant Certificate in every
particular, without alteration or enlargement or any change
whatsoever, or if signed by any other person the Form of
Assignment hereon must be duly executed and if the certificate
representing the shares or any Warrant Certificate representing
Warrants not exercised is to be registered in a name other than
that in which the within Warrant Certificate Is registered, the
signature of the holder hereof must be guaranteed.
