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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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EVERGREEN RESOURCES, INC.
(Exact name of registrant as specified in its charter)
COLORADO 84-0834147
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(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification Number)
1401 17TH STREET, SUITE 1200
DENVER, COLORADO 80202
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(Address of principal executive offices, including zip code)
2000 STOCK INCENTIVE PLAN OF
EVERGREEN RESOURCES, INC.
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(Full title of the plan)
MARK S. SEXTON
CHIEF EXECUTIVE OFFICER
EVERGREEN RESOURCES, INC.
1401 17TH STREET, SUITE 1200
DENVER, COLORADO 80202
(303) 298-8100
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(Name, address and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share (1) price (1) fee (1)
---------- ----------- -------------- ------------- ------------
<S> <C> <C> <C> <C>
Common Stock,
no par value 1,000,000 shares $35.91 per share $35,910,000 $9,480.24
</TABLE>
(1) Pursuant to Rule 457(c) and (h)(1), based on the average ($35.91) of the
high ($36.13) and low ($35.69) sale prices of the Company's common stock on
October 17, 2000, as reported on the New York Stock Exchange.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Evergreen Resources, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K405 for the year ended
December 31, 1999, as filed with the Commission on March 30, 2000;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2000 and June 30, 2000, as filed with the Commission on May 15, 2000
and August 14, 2000, respectively;
(c) The Company's Current Reports on Form 8-K's and Form 8-K/A, as filed
with the Commission on October 5, 2000, October 13, 2000, October 16, 2000 and
October 16, 2000, respectively;
(d) The description of the common stock that is contained in the Company's
registration statement on Form 8-A filed with the Commission on or about
December 21, 1981, including any amendment or report filed for the purposes of
updating the description;
(e) The description of the Company's Shareholders Rights Agreement that is
contained in the Company's registration statement on Form 8-A filed with the
Commission on July 7, 1997; and
(f) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year referred to in (a) above.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the securities offered hereby has been passed upon by the
law firm of Berenbaum, Weinshienk & Eason, P.C.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 7-108-402 of the Colorado Business Corporation Act (the "Act")
provides, generally, that the articles of incorporation of a Colorado
corporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director; except that any such
provision may not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its shareholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) acts specified in Section 7-108-403
(concerning unlawful distributions), or (iv) any transaction from which a
director directly or indirectly derived an improper personal benefit. Such
provision may not eliminate or limit the liability of a director for any act or
omission occurring prior to the date on which such provision becomes effective.
The Company's articles of incorporation contain a provision eliminating
liability as permitted by the statute. The Company's articles of incorporation
further provide that directors and officers of the Company will not be held
personally liable for any injury to persons or property caused by the wrongful
act of any employee of the Company unless either (i) the director or officer was
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personally involved in the situation leading to litigation or (ii) the director
or officer committed a criminal offense in connection with such litigation.
Section 7-109-103 of the Act provides that a Colorado corporation must
indemnify a person (i) who is or was a director of the corporation or an
individual who, while serving as a director of the corporation, is or was
serving at the corporation's request as a director, officer, partner, trustee,
employee or fiduciary or agent of another corporation or other entity or of any
employee benefit plan (a "Director") or officer of the corporation and (ii) who
was wholly successful, on the merits or otherwise, in defense of any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal (a
"Proceeding"), in which he was a party, against reasonable expenses incurred by
him in connection with the Proceeding, unless such indemnity is limited by the
corporation's articles of incorporation. The Company's articles of incorporation
do not contain any such limitation.
Section 7-109-102 of the Act provides, generally, that a Colorado
corporation may indemnify a person made a party to a Proceeding because the
person is or was a Director against any obligation incurred with respect to a
Proceeding to pay a judgment, settlement, penalty, fine (including an excise tax
assessed with respect to an employee benefit plan) or reasonable expenses
incurred in the Proceeding if the person conducted himself or herself in good
faith and the person reasonably believed, in the case of conduct in an official
capacity with the corporation, that the person's conduct was in the
corporation's best interests and, in all other cases, his conduct was at least
not opposed to the corporation's best interests and, with respect to any
criminal proceedings, the person had no reasonable cause to believe that his
conduct was unlawful. The Company's articles of incorporation and its bylaws
provide for such indemnification. A corporation may not indemnify a Director in
connection with any Proceeding by or in the right of the corporation in which
the Director was adjudged liable to the corporation or, in connection with any
other Proceeding charging the Director derived an improper personal benefit,
whether or not involving actions in an official capacity, in which Proceeding
the Director was judged liable on the basis that he derived an improper personal
benefit. Any indemnification permitted in connection with a Proceeding by or in
the right of the corporation is limited to reasonable expenses incurred in
connection with such Proceeding.
Under Section 7-109-107 of the Act, unless otherwise provided in the
articles of incorporation, a Colorado corporation may indemnify an officer,
employee, fiduciary, or agent of the corporation to the same extent as a
Director and may indemnify such a person 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. The Company's articles of incorporation and bylaws provide for
indemnification of officers, employees and agents of the Company to the same
extent as its directors.
The Company's articles of incorporation and bylaws permit the Company to
pay expenses incurred in defending a Proceeding in advance of the final
disposition of the Proceeding if the person undertakes to repay the amount
unless it is ultimately determined that he is entitled to such expenses.
The Company's articles of incorporation also provide that the Company may
purchase and maintain insurance covering any person serving on behalf of, or at
the request of, the Company against any liability incurred by him in such
capacity or arising out of his status as such, whether or not the Company would
have the power to indemnify him against such liability. The Company has obtained
a policy of directors' and officers' liability insurance that insures the
Company's directors and officers against the cost of defense, settlement or
payment of a judgment under certain circumstances.
In addition, the Plan provides that each person who serves as a member of
the Board of Directors or Compensation Committee of the Board of the Company
shall be indemnified and held harmless by the Company against and from (i) any
loss, cost, liability or expense imposed on or reasonably incurred by such
person in connection with any claim, action, suit or proceeding to which such
person may be a party or otherwise involved by reason of any action or failure
to act under the Plan; and (ii) any and all amounts paid by such person in
satisfaction of judgment in any such action related to the Plan.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following exhibits are filed as a part of this Registration Statement:
<TABLE>
<CAPTION>
Number Description
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<S> <C>
4.1 Articles of incorporation of the Company, as amended, which are
incorporated by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-1 (Commission File No.
33-273035), by reference to Exhibit I of the Company's Current
Report on Form 8-K dated December 9, 1994, and by reference to
Exhibit 3.1 to the Company's Current Report on Form 8-K dated
June 1, 1998.
4.2 Bylaws of the Company, which are incorporated by reference to
Exhibit 3.2 to the Company's Current Report on Form 8-K dated
June 1, 1998.
4.3 Shareholders' Rights Agreement, which is incorporated by
reference to Exhibit 1 to the Company's Current Report on Form
8-K dated July 7, 1997.
5 Opinion of Berenbaum, Weinshienk & Eason, P.C.
23.1 Consent of Berenbaum, Weinshienk & Eason, P.C. (included in
Exhibit 5)
23.2 Consent of BDO Seidman, LLP
23.3 Consent of Resource Services International, Inc.
23.4 Consent of Netherland, Sewell & Associates, Inc.
24 Power of Attorney of Directors and Officers of the Company
(included in the signature page)
99 2000 Stock Incentive Plan of Evergreen Resources, Inc.
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) 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, as amended (the "Securities Act");
(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; provided,
however, that notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
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PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 Securities Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, Evergreen
Resources, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 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 this 18th day of
October, 2000.
EVERGREEN RESOURCES, INC.
By: /s/ Mark S. Sexton
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Mark S. Sexton
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
Each of the undersigned, being a director and/or officer of Evergreen
Resources, Inc. (the "Company"), hereby nominates, constitutes and appoints Mark
S. Sexton and Kevin R. Collins, or any one of them severally, to be his or her
true and lawful attorney-in-fact and agent and to sign in his or her name and on
his or her behalf in any and all capacities stated below, and to file with the
Securities and Exchange Commission (the "Commission"), a Registration Statement
on Form S-8 (the "Registration Statement") relating to the issuance of certain
shares of the common stock, no par value, of the Company (the "Common Stock") in
connection with the 2000 Stock Incentive Plan of Evergreen Resources, Inc., and
to file any and all amendments, including post-effective amendments, to the
Registration Statement, making such changes in the Registration Statement as
such attorney-in-fact and agent deems appropriate, and generally to do all such
things on his or her behalf in any and all capacities stated below to enable the
Company to comply with the provisions of the Securities Act of 1933, as amended,
and all requirements of the Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on October 18, 2000.
/s/ Mark S. Sexton * /s/ Kevin R. Collins *
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Name: Mark S. Sexton, President, Name: Kevin R. Collins, Vice President -
Chief Executive Officer and Finance, Chief Financial Officer
Director (Principal Executive and Treasurer (Principal
Officer) Financial and Accounting Officer)
/s/ Alain G. Blanchard * /s/ Dennis R. Carlton *
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Name: Alain G. Blanchard, Director Name: Dennis R. Carlton, Director
/s/ Larry D. Estridge * /s/ John J. Ryan III *
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Name: Larry D. Estridge, Director Name: John J. Ryan III, Director
/s/ Scott D. Sheffield * /s/ Arthur L. Smith *
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Name: Scott D. Sheffield, Director Name: Arthur L. Smith, Director
*By: /s/ Kevin R. Collins *
--------------------------------
Name: Kevin R. Collins
Attorney-in-Fact
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<PAGE>
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8 OF
EVERGREEN RESOURCES, INC.
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
4.1 Articles of incorporation of the Company, as amended, which are
incorporated by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-1 (Commission File No.
33-273035), by reference to Exhibit I of the Company's Current
Report on Form 8-K dated December 9, 1994, and by reference to
Exhibit 3.1 to the Company's Current Report on Form 8-K dated
June 1, 1998.
4.2 Bylaws of the Company, which are incorporated by reference to
Exhibit 3.2 to the Company's Current Report on Form 8-K dated
June 1, 1998.
4.3 Shareholders' Rights Agreement, which is incorporated by
reference to Exhibit 1 to the Company's Current Report on Form
8-K dated July 7, 1997.
5 Opinion of Berenbaum, Weinshienk & Eason, P.C.
23.1 Consent of Berenbaum, Weinshienk & Eason, P.C. (included in
Exhibit 5)
23.2 Consent of BDO Seidman, LLP
23.3 Consent of Resource Services International, Inc.
23.4 Consent of Netherland, Sewell & Associates, Inc.
24 Power of Attorney of Directors and Officers of the Company
(included in the signature page)
99 2000 Stock Incentive Plan of Evergreen Resources, Inc.
</TABLE>
