As Filed With the Securities and Exchange Commission on October 21, 1997
Registration Statement No. 33-91452
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2 TO FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
__________________________________
DELTA PETROLEUM CORPORATION
(Exact Name of Registrant in its Charter)
Colorado 84-1060803
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
Suite 3310, 555 17th Street, Denver, Colorado 80202
(303) 293-9133
(Address and telephone number of principal
executive offices and principal place of business)
Aleron H. Larson, Jr., Chairman/C.E.O
Delta Petroleum Corporation
Suite 3310, 555 17th Street
Denver, Colorado 80202
(303) 293-9133
(Name, address and telephone
number of agent for service)
Copies to:
Stanley F. Freedman, Esq.
Krys Boyle Freedman Scott & Sawyer, P.C.
600 Seventeenth Street, Suite 2700 South
Denver, Colorado 80202-5427
(303) 893-2300
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 registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. -- X --
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. -- --
_______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. -- -- __________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. -- --
CALCULATION OF REGISTRATION FEE
Proposed Maximum Amount of
Title of Class of Securities Amount to be Aggregate Registration
to be Registered Registered Offering Price(1) Fee
Common Stock, $.01 Par Value 389,500 $3.44 (2)
____________________
(1) Estimated solely for the purpose of computing the amount of
registration fee based on the closing price of Registrant's Common Stock
on the Nasdaq Small-Cap Market on October 9, 1997.
(2) A Registration Fee of $6,453.67 was paid at the time of the
initial filing.
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 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.
SUBJECT TO COMPLETION; DATED OCTOBER 21, 1997
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT
BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
DELTA PETROLEUM CORPORATION
389,500 Shares of Common Stock
$0.01 par value per share
All of the common stock, $0.01 par value (the "Common Stock"), of
Delta Petroleum Corporation ("Delta" or the "Company") registered
hereunder is for the account of the owners (collectively, the "Selling
Shareholders"). The Company will not receive any proceeds from the sale
of the Common Stock sold by the Selling Shareholders.
The Company's Common Stock is traded on the Nasdaq Small-Cap Market
under the symbol "DPTR." On October 9, 1997, the last reported price
for the Common Stock on the Nasdaq Small-Cap Market was $3.4375.
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK AND
IMMEDIATE SUBSTANTIAL DILUTION. THESE SECURITIES SHOULD BE PURCHASED
ONLY BY PERSONS WHO CAN BEAR THE ECONOMIC RISK OF THIS INVESTMENT. SEE
"RISK FACTORS" AND "DILUTION."
____________________________
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 Company anticipates that sales may be effected from time to
time, by or for the accounts of the Selling Shareholders, in the Nasdaq
Small-Cap Market, in negotiated transactions or otherwise. Sales will
be made through broker-dealers acting as agent for the Selling
Shareholders or to broker-dealers who may purchase the Common Stock as
principals and thereafter sell the shares from time to time in the
Nasdaq Small-Cap Market, in negotiated transactions, or otherwise.
Sales will be made at market prices prevailing at the times of the sales
or at negotiated prices. See "Plan of Distribution."
The date of this Prospectus is October 21, 1997
AVAILABLE INFORMATION
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and in accordance therewith files reports and other information
with the Securities and Exchange Commission (the "Commission").
Such reports and other information filed by the Company can be
inspected and copied at the public reference facilities of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Regional Offices of the
Commission located at 7 World Trade Center, New York, New York
10048 and 500 West Madison, 14th Floor, Chicago, Illinois 60661.
Copies can be obtained by mail at prescribed rates. Requests for
copies should be directed to the Commission's Public Reference
Section, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549. The Commission maintains a Web site (http://www.sec.gov)
that contains reports, proxy and information statements and other
information regarding registrants that file electronically.
The Company has filed with the Commission a Registration
Statement on Form S-3 (together with all exhibits, amendments and
supplements, the "Registration Statement") of which this Prospectus
constitutes a part, under the Securities Act of 1933, as amended
(the "Securities Act"). This Prospectus does not contain all of
the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules of the
Commission. For further information pertaining to the Company,
reference is made to the Registration Statement. Statements
contained in this Prospectus or any document incorporated herein by
reference concerning the provisions of documents are necessarily
summaries of such documents, and each such statement is qualified
in its entirety by reference to the copy of the applicable document
filed with the Commission. Copies of the Registration Statement
are on file at the offices of the Commission, and may be inspected
without charge at the offices of the Commission, the addresses of
which are set forth above, and copies may be obtained from the
Commission at prescribed rates. The Registration Statement has
been filed electronically through the Commission's Electronic Data
Gathering, Analysis and Retrieval System and may be obtained
through the Commission's Web site (http://www.sec.gov).
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following Company documents shall be deemed to be
incorporated in this Prospectus and to be a part hereof from the
date of the filing of such documents:
1. Annual Report on Form 10-KSB for the fiscal year ended June
30, 1997.
2. Proxy solicitation materials for Annual Meeting of
Shareholders to be held on November 25, 1997.
3. All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, prior to the termination of the offering
described herein.
Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for all
purposes to the extent that a statement contained in this
Prospectus or in any other subsequently filed document which is
also incorporated herein by reference modifies or replaces such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on written or oral request of such person,
a copy (without exhibits) of any or all documents incorporated by
reference in this Prospectus. Requests for such copies should be
directed to Aleron H. Larson, Jr., Delta Petroleum Corporation,
Suite 3310, 555 17th Street, Denver, Colorado 80202, or (303)
293-9133.
TABLE OF CONTENTS
PAGE
THE COMPANY ..................................................... 5
RISK FACTORS .................................................... 5
USE OF PROCEEDS ................................................. 10
DILUTION ........................................................ 10
SELLING SHAREHOLDERS ............................................ 11
PLAN OF DISTRIBUTION ............................................ 13
DESCRIPTION OF COMMON STOCK ..................................... 14
EXPERTS ......................................................... 15
LEGAL MATTERS ................................................... 15
THE COMPANY
General
Delta Petroleum Corporation (the "Company") is a Colorado
corporation organized December 21, 1984 and maintains its principal
executive offices at Suite 3310, 555 Seventeenth Street, Denver,
Colorado, 80202.
The Company is engaged in the acquisition, operation,
exploration and development of oil and gas properties. As of June
30, 1997, the Company had varying interests in 96 gross (18.61 net)
productive wells located in six states. The Company has
undeveloped properties in five states, including interests in four
federal units and one lease offshore California. Twenty-four of
the Company's wells are operated by the Company. The remaining
wells are operated by independent operators. All Company wells are
operated under contracts that are standard in the industry. The
Company does not presently have any foreign operations. At June
30, 1997, the Company estimated its proved reserves attributable to
its onshore properties to be 163,000 Bbls of oil and 5.42 Bcf of
gas, of which 34,000 Bbls of oil and 3.42 Bcf of gas are proved
developed reserves. At June 30, 1997, the Company estimated its
proved undeveloped reserves attributable to its offshore California
properties, based upon reserve reports, to be 72,328,000 Bbls of
oil and 77.7 Bcf of gas. See, however, the discussion with respect
to offshore California reserves and "RISK FACTORS -- Uncertainty of
Reserve Estimates."
RISK FACTORS
Prospective investors should consider carefully, in addition
to the other information in this Prospectus, the following:
1. Shortages of Working Capital and Funding. The Company's
level of oil and gas activities, including exploration and
development of existing properties, and additional property
acquisition, will be significantly dependent on the Company's
ability to raise additional capital. No assurances can be given
that such funding transactions will be completed successfully.
As of June 30, 1997, current liabilities exceeded current
assets by $530,822. The Company believes that its current working
capital deficit can be funded through operations or the sale of
assets, if required.
2. Concerns Relating to Development of Offshore California
Properties. The Company's Offshore California proved undeveloped
reserves are attributable to its interests in four federal units
(plus one additional lease) located offshore California near Santa
Barbara. While these interests represent ownership of substantial
oil and gas reserves classified as proved undeveloped, the cost to
develop the reserves will be very substantial. The Company may be
required to farm out all or a portion of its interests in these
properties to a third party if it cannot fund its share of the
development costs. There can be no assurance that the Company can
farm out its interests on acceptable terms. If the Company were to
farm out its interests in these properties, its share of the proved
reserves attributable to the properties would be decreased
substantially. The Company may also incur substantial dilution of
its interests in the properties if it elects to use other methods
of financing the development costs.
These units have been formally approved and are regulated by
the Minerals Management Service of the federal government. However,
due to a history of opposition to offshore drilling and production
in California by some individuals and groups, the process of
obtaining all of the necessary permits and authorizations to
develop the properties will be lengthy. While the federal
government has recently attempted to expedite the permitting
process, there can be no assurance that it will be successful in
doing so. The Company does not have a controlling interest in and
does not act as the operator of any of the offshore California
properties and consequently will not control the timing of either
the development of the properties or the expenditures for
development. Management and its independent engineering
consultants have considered these factors relating to timing of the
development of the reserves in the preparation of the reserve
information relating to these properties. As additional
information becomes available in the future, the Company's
estimates of the proved undeveloped reserves attributable to these
properties could change, and such changes could be substantial.
3. Uncertainty of Reserve Estimates. The reserve estimates,
which are included in the notes to the financial statements
included in the Company's Annual Report on Form 10-KSB for the
fiscal year ended June 30, 1997, are inherently uncertain until
such time as drilling is completed. Further, such estimates are
based upon assumptions made by an independent petroleum engineer,
which assumptions may or may not ultimately prove to be accurate.
Consequently, actual expenditures, production and revenues may vary
substantially from the reserve estimates provided, which variance
could have a material effect upon the estimated quantity and
present value of such reserves. See "RISK FACTORS--Concerns
Relating to Development of Offshore California Properties."
4. Substantial Costs to Develop Reserves. During the year
ended June 30, 1997, the Company participated in the drilling
and/or completion/recompletion of 7 gas wells and 2 oil wells in
Oklahoma and Wyoming. Management anticipates that the Company will
participate in the drilling of a total of 25 to 30 new wells during
the fiscal year ending June 30, 1998. Although management believes
that the Company will participate in the drilling of additional
wells during the current fiscal year, the Company's level of oil
and gas activity, including exploration and development and
property acquisitions, will be to a significant extent dependent on
the Company's ability to raise additional capital, of which there
is no assurance.
The Company expects to continue incurring costs to acquire,
explore and develop oil and gas properties, and management predicts
that these costs (together with general and administrative
expenses) will be in excess of funds available from revenues from
properties owned by the Company or existing cash on hand. It is
anticipated that the source of funds to carry out such exploration
and development will come from a combination of the Company's sale
of working interests in oil and gas leases, production revenues,
sales of the Company's securities, and funds from any funding
transactions in which the Company might engage.
In addition, the Company's independent petroleum engineer has
provided estimates to the Company indicating that the anticipated
costs associated with the development of the Company's Offshore
California proved undeveloped reserves are significantly in
excess of the Company's total assets at the
present time. The source of funding of such costs is currently
unknown, but it is likely that the Company may be required to farm
out some or all of its interests in these properties to a third
party if it cannot provide its share of the development costs from
some other source. There can be no assurance that the Company can
farm out its interests on acceptable terms. If the Company were to
farm out its interests in these properties, its share of the proved
reserves attributable to the properties would be decreased
substantially. The Company may also incur substantial dilution of
its interests in the properties if it elects to use other methods
of financing the development costs.
5. Dependence on Oil and Gas Prices. The Company's oil and
gas exploration and production activities are dependent on the
actual prices for oil and gas. The prices for oil and gas are
dependent on a number of factors, including the extent of domestic
production and imports of oil; the competitive position of oil and
gas as a source of energy as compared with coal, atomic energy,
hydroelectric power, and other energy sources; the refining
capacity of prospective oil purchasers; the availability and
capacity of pipelines and other means of transportation; and the
effect of federal and state regulation on production,
transportation, and sale of oil and gas. Such factors are beyond
the Company's control or influence. The volatility of prices of
oil and gas, which has been substantial in the past and may
continue to be high in the future, may have material effects on the
Company's liquidity and capital resources. Additionally, the
valuation of the Company's proven and unproven oil and gas
properties and its production revenues could vary and fluctuate
significantly with changes in oil and gas prices.
6. Shares Available for Resale. Of the Company's presently
outstanding shares of Common Stock, 980,180 shares of "restricted
securities" (the "UFG Owned Shares") are owned by the Company's
former parent, Underwriters Financial Group, Inc. ("UFG"), which
has filed for protection under federal bankruptcy laws. Under the
terms of a settlement agreement reached among the Company, UFG and
Snyder Oil Corporation ("SOCO"), UFG granted a lien to SOCO on the
UFG Owned Shares. While the settlement agreement imposes certain
restrictions upon the sales of the UFG Owned Shares into the public
market in addition to any restrictions provided by SEC Rule 144 for
affiliates, SOCO and the Trustee in Bankruptcy for UFG intend to
effectuate the sale of the UFG Owned Shares as soon as practicable.
Investors should be aware that such sale of the UFG Owned Shares
may, in the future, have a depressive effect on the price of the
Company's Common Stock.
7. Competition. Oil and gas exploration and acquisition of
undeveloped properties is a highly competitive and speculative
business. The Company competes with a number of other companies,
including major oil companies and other independent operators which
are more experienced and which have greater financial resources.
The Company does not hold a significant competitive position in the
oil and gas industry.
8. Governmental Regulation and Control. The activities of
the Company are subject to extensive federal, state, and local laws
and regulations controlling not only the exploration for and sale
of oil, but also the possible effects of such activities on the
environment. Present as well as future legislation and regulations
could cause additional expenditures, restrictions and delays in the
Company's business, the extent of which cannot be predicted, and
may require the Company to cease operations in some circumstances.
In addition, the production and sale of oil and gas are subject to
various governmental controls. Because federal energy policies are
still uncertain and are subject to constant revisions, no
prediction can be made as to the ultimate effect of such
governmental policies and controls on the Company.
9. Dependence Upon Operators. The Company operates only a
small portion of most of the wells in which it owns an interest.
As such, the Company is dependent upon the operator of most of its
wells to make most decisions concerning such things as whether or
not to drill additional wells, how much production to take from
such wells, or whether or not to cease operation of certain wells.
While the Company, as a working interest owner, may have some voice
in the decisions concerning the wells, it is not the primary
decision maker concerning them. Therefore, the Company may be
unable to cause wells to be drilled even though it may have the
funds with which to pay its proportionate share of the expenses of
such drilling.
10. General Risks Inherent in Oil and Gas Drilling. The
Company's business is subject to all risks inherent in the
exploration and development of oil and gas properties, including
but not limited to environmental damage, personal injury, and other
occurrences that could result in the Company incurring substantial
losses and liabilities to third parties. In its own activities,
the Company purchases insurance against risks customarily insured
against by others conducting similar activities. Nevertheless, the
Company is not insured against all losses or liabilities which may
arise from all hazards because such insurance is not available at
economic rates, because the operator has not purchased such
insurance, or because of other factors. Any uninsured loss could
have a material adverse effect on the Company.
11. No Long Term Contracts. The Company does not have any
long-term supply or similar agreements with governments or
authorities pursuant to which the Company acts as producer. The
Company, therefore, is dependent upon its ability to sell oil and
gas at the then current prices. There can be no assurance the
purchasers will be available or that the price they are willing to
pay will remain stable.
12. Lack of Diversification. Since all of the Company's
resources are allocated to one business area, purchasers of the
Company's common stock will be risking essentially their entire
investment in a venture that is unable to spread the risk of loss
over several projects with the hope that at least one will succeed.
13. Voting Rights. Holders of the common stock are not
entitled to accumulate their votes for the election of directors or
otherwise. Accordingly, the present shareholders will be able to
elect all of the directors of the Company, and holders of the
common stock offered hereby will not be able to elect a
representative to the Company's Board of Directors. See
"DESCRIPTION OF COMMON STOCK."
14. Lack of Prospective Dividends. There can be no assurance
that the proposed operations of the Company will result in
sufficient revenues to enable the Company to operate at profitable
levels or to generate a positive cash flow. For the foreseeable
future, it is anticipated that any earnings which may be generated
from operations of the Company will be used to finance the growth
of the Company and that dividends will not be paid to holders of
common stock. See "DESCRIPTION OF COMMON STOCK."
15. No Assurance of a Public Market. The Company's common
stock is listed on the Nasdaq Small-Cap Market and trades under the
symbol "DPTR." To date, trading volumes for the Company's common
stock have been relatively light. Average weekly trading volume
for the twelve months ended June 30, 1997 was 154,827 shares. The
high sales price during such period was $7.625, while the low sales
price during the same period was $3.25.
USE OF PROCEEDS
The Company will not receive any of the proceeds of this
offering except such proceeds as may be received by the Company
upon the exercise of outstanding warrants or options by the Selling
Shareholders, which proceeds, if any, would be used for working
capital and drilling and development of the Company's properties.
See "COMPANY."
DILUTION
As of June 30, 1997, the Company had 5,230,631 shares of
common stock issued and outstanding with a net tangible book value
of $9,170,868 or $1.75 per share. Net tangible book value per
share represents the amount of the Company's total assets less
total liabilities, divided by the number of shares of common stock
outstanding. The following table sets forth the dilution to be
incurred by investors acquiring common stock.
Assumed Offering Price (1) $ 3.4375
Net tangible book value per share
at June 30, 1997 $ 1.75
Dilution to Purchasers of common stock $ 1.6875
Dilution to Purchasers as Percentage
of Purchase Price 49.1%
____________________
1 Assumes a purchase price of $3.4375. The closing bid price of the
Company's common stock on NASDAQ on October 9, 1997, was $3.4375.
SELLING SHAREHOLDERS
The following table indicates the Selling Shareholders
currently known to the Company. The calculations are based upon
outstanding shares at September 16, 1997 of 5,230,631.
Number of
Shares of
Common Stock % Held
Owned Prior to Prior to Common Stock
Name the Offering Offering to be Sold
Burdette A. Ogle 761,891(1) 14.57% 100,000(1)
Hunter Equities 50,000(2) 0.96% 50,000(2)
Kevin S. Miller 15,000(3) 0.29% 15,000(3)
Ken Lucas 42,500(4) 0.80% 42,500(4)
Craig Scott 21,250(5) 0.41% 21,250(5)
Glenn Kennedy 21,250(6) 0.41% 21,250(6)
Dublin Holding 50,000(7) 0.96% 50,000(7)
Inc.
Terry D. Enright 30,000(8) 0.57% 15,000(9)
Kent Lina 2,000(10) 0.04% 2,000(10)
Estate of
Don E. Mettler 23,125(11) 0.44% 10,000(12)
James S. & Mindy
Cassel 21,438(13) 0.41% 21,438(13)
Scott E. Salpeter 625(14) 0.01% 625(14)
Steven B. Bronson 35,219(15) 0.67% 35,219(15)
Eric R. Elliott 1,531(16) 0.03% 1,531(16)
Barry F. Booth 1,531(17) 0.03% 1,531(17)
Barry E. Steiner 625(18) 0.01% 625(18)
Bruce C. Barber 1,531(19) 0.03% 1,531(19)
TOTAL 1,079,516 20.64% 389,500
Number of
Shares of % Held
Common Stock After
Owned After the
the Offering Offering
Burdette A. Ogle 661,891 11.78%
Hunter Equities -0- -0-
Kevin S. Miller -0- -0-
Ken Lucas -0- -0-
Craig Scott -0- -0-
Glenn Kennedy -0- -0-
Dublin Holding -0- -0-
Inc. -0- -0-
Terry D. Enright 15,000 0.27%
Kent Lina -0- -0-
Estate of
Don E. Mettler 13,125 0.23%
James S. & Mindy
Cassel -0- -0-
Scott E. Salpete -0- -0-
Steven B. Bronson -0- -0-
Eric R. Elliott -0- -0-
Barry F. Booth -0- -0-
Barry E. Steiner -0- -0-
Bruce C. Barber -0- -0-
TOTAL 690,016 12.28%
1 . Includes 100,000 shares of the Company's common
stock underlying a currently exercisable warrant to purchase
100,000 shares at a purchase price of $8.00, subject to a call
provision by the Company under certain circumstances.
2. Includes 50,000 shares underlying a currently
exercisable warrant to purchase 50,000 shares of the Company's
common stock at a purchase price of $6.00 per share.
3. Includes 15,000 shares underlying a currently
exercisable warrant to purchase the Company's common stock for
$8.50 per share.
4. Includes 42,500 shares underlying a currently exercisable
warrant to purchase the Company's common stock for $8.50 per
share.
5. Includes 21,250 shares underlying a currently
exercisable warrant to purchase the Company's common stock for
$8.50 per share.
6. Includes 21,250 shares underlying a currently
exercisable warrant to purchase the Company's common stock for
$8.50 per share.
7. Includes 50,000 shares underlying a currently
exercisable option to purchase shares for $6.00 per share.
8. Includes 7,500 shares of the Company's common stock
underlying a currently exercisable option to purchase shares at
$3.30 per share, 7,500 shares of the Company's common stock
underlying a currently exercisable option to purchase shares at
$3.15 per share, 5,000 shares of the Company's common stock
underlying a currently exercisable warrant to purchase shares at
$1.25 per share, 10,000 shares of the Company's
common stock underlying a currently exercisable warrant to
purchase shares at $3.50 per share. Mr. Enright is a
director of the Company.
9. Shares underlying a currently exercisable warrant
to purchase 5,000 shares of the Company's common stock at a price
of $1.25 per share, and shares underlying a currently exercisable
warrant to purchase 10,000 shares at a price of $3.50 per share.
10. Includes 2,000 shares of the Company's common
stock underlying exercisable warrant to purchase shares at a
price of $1.25 per share.
11. Includes 7,500 shares of the Company's common
stock underlying a currently exercisable option to purchase
shares at $3.30 per share, 5,625 of the Company's common stock
underlying a currently exercisable option to purchase shares at
$3.21 per share and 10,000 shares of the Company's common stock
underlying a currently exercisable warrant to purchase shares at
$3.50 per share. Mr. Mettler was a director of the Company until
his death on September 3, 1996.
12. Includes 10,000 shares of the Company's common
stock underlying a currently exercisable warrant to purchase
shares at $3.50 per share.
13. Shares underlying a currently exercisable
warrant to purchase 21,438 shares of the Company's common stock
at a price of $6.125 per share.
14. Shares underlying a currently exercisable
warrant to purchase 625 shares of the Company's common stock at a
price of $6.125 per share.
15. Shares underlying a currently exercisable
warrant to purchase 35,219 shares of the Company's common stock
at a price of $6.125 per share.
16. Shares underlying a currently exercisable
warrant to purchase 1,531 shares of the Company's common stock at
a price of $6.125 per share.
17. Shares underlying a currently exercisable
warrant to purchase 1,531 shares of the Company's common stock at
a price of $6.125 per share.
18. Shares underlying a currently exercisable
warrant to purchase 625 shares of the Company's common stock at a
price of $6.125 per share.
19. Shares underlying a currently exercisable
warrant to purchase 1,531 shares of the Company's common stock at
a price of $6.125 per share.
The Company will not receive any proceeds from the sale of Common
Stock by any of the Selling Shareholders listed above except such
proceeds as may be received by the Company upon the exercise of
outstanding warrants or options by the Selling Shareholders. The
Company has the unilateral right to reduce the exercise price of each of
the warrants and options listed above, and may do so if deemed to be in
the best interests of the Company and its shareholders in the reasonable
business judgment of the Board of Directors. The Company has agreed to
pay for all costs and expenses incident to the issuance, offer, sale and
delivery of the Common Stock, including, but not limited to, all
expenses and fees of preparing, filing and printing the Registration
Statement and Prospectus and related exhibits, amendments and
supplements thereto and mailing of such items. The Company will not pay
selling commissions and expenses associated with any such sales by any
of the Selling Shareholders. The Selling Shareholders have advised the
Company that sales of shares of the Company's Common Stock may be made
from time to time by and for their respective accounts in one or more
transactions in the over-the-counter market, in negotiated transactions
or otherwise, at prices related to the prevailing market prices or at
negotiated prices.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling
Shareholders. Such sales may be made in the over-the-counter market or
otherwise at prices and at terms then prevailing or at prices related to
the then current market price, or in negotiated transactions. The
Shares may be sold by one or more of the following methods: (i) a block
trade in which the broker or dealer so engaged will attempt to sell the
Shares as agent for the Selling Shareholders; and (ii) ordinary
brokerage transactions and transactions in which the broker solicits
purchasers. In effecting sales, brokers or dealers engaged by the
Selling Shareholders may arrange for other brokers or dealers to
participate. Brokers or dealers will receive commissions from the
Selling Shareholders in amounts to be negotiated immediately prior to
the sale. Such brokers or dealers and any other participating brokers
or dealers may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales.
The Selling Shareholders have advised the Company that sales of the
Common Stock registered hereby may be effected from time to time in
transactions (which may include block transactions) in the NASDAQ
market, in negotiated transactions, through the writing of options on
the Common Stock, or a combination of such methods of sale, at fixed
prices which may be charged, at market prices prevailing at the time of
sale, or at negotiated prices.
The Selling Shareholders may effect such transactions by selling
Common Stock directly to purchasers or to or through broker-dealers
which may act as agents or principals. Such broker-dealers may receive
compensation in the form of discounts, concessions, or commissions from
the Selling Shareholders and/or the purchasers of Common Stock for whom
such broker-dealers may act as agents or to whom they sell as principal,
or both. The Selling Shareholders and any broker-dealers that act in
connection with the sale of the Common Stock might be deemed to be
"underwriters" within the meaning of Section 2(11) of the Act and any
commissions received by them and any profit on the resale of the Common
Stock as principal might be deemed to be underwriting discounts and
commissions under the Securities Act.
The Selling Shareholders may agree to indemnify any agent, dealer
or broker-dealer that participates in transactions involving sales of
the Common Stock against certain liabilities, including liabilities
arising under the Securities Act.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or
persons controlling the Company pursuant to the foregoing provisions,
the Company has been informed that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in such Act and is therefore unenforceable.
DESCRIPTION OF COMMON STOCK
The Company is authorized to issue 300,000,000 shares of its $.01
par value Common Stock, of which 5,230,631 shares were issued and
outstanding as of September 16, 1997. Holders of Common Stock are
entitled to cast one vote for each share held of record on all matters
presented to shareholders. Shareholders do not have cumulative rights;
hence, the holders of more than 50% of the outstanding Common Stock can
elect all directors.
Holders of Common Stock are entitled to receive such dividends as
may be declared by the Board of Directors out of funds legally available
therefor and, in the event of liquidation, to share pro rata in any
distribution of the Company's assets after payment of all liabilities.
The Company does not anticipate that any dividends on Common Stock will
be declared or paid in the foreseeable future. Holders of Common Stock
do not have any rights of redemption or conversion or preemptive rights
to subscribe to additional shares if issued by the Company. All of the
outstanding shares of the Company's Common Stock are fully paid and
nonassessable.
The 980,180 shares of the Company's Common Stock owned by UFG are
subject to a voting agreement with the Company, whereby Aleron H.
Larson, Jr. and Roger A. Parker, the Chief Executive Officer and
President of the Company, respectively, have the right to vote the
shares owned by UFG. The voting agreement does not apply if the shares
are sold to persons who, upon such purchase, would not be deemed
affiliates of the Company or UFG.
EXPERTS
The consolidated balance sheets of the Company as of June 30, 1997
and 1996 and the related consolidated statements of operations,
shareholders' equity, and cash flows for the years ended June 30, 1997
and 1996, have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG Peat Marwick
LLP, independent certified public accountants, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
LEGAL MATTERS
The validity of the issuance of the Common Stock offered hereby
will be passed upon for the Company by Krys Boyle Freedman & Sawyer,
P.C., Denver, Colorado.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THE COMMON STOCK OFFERED BY THIS
PROSPECTUS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY COMMON STOCK IN ANY CIRCUMSTANCES IN
WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION
CONTAINED BY REFERENCE HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
ITS DATE.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table itemizes the estimated expenses to be incurred
by the Company in connection with the issuance and distribution of the
securities being registered hereby.
SEC Registration Fee.................... $ 6,453.67
Transfer Agent Fees..................... -
Legal Fees and Expenses................. 20,000.00
Accounting Fees and Expenses............ 10,000.00
Miscellaneous........................... 10,000.00
Total................................. $46,453.67
Item 15. Indemnification of Directors and Officers.
The Colorado Business Corporation Act (the "Act") provides that a
Colorado 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 (iii) in the case of any criminal
proceeding, the person had no reasonable cause to believe his or her
conduct was unlawful. 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 the Act. The Act also
provides that a Colorado corporation is not permitted to indemnify a
director (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. Indemnification permitted under the Act in
connection with a proceeding by or in the right of the corporation is
limited to reasonable expenses incurred in connection with the
proceeding.
Article X of the Company's Articles of Incorporation provides as
follows:
"ARTICLE X
INDEMNIFICATION
The corporation may:
(A) 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 the best interest of the
corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction or upon a plea of nolo contendere or its
equivalent shall not of itself create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be
in the best interest of the corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe his
conduct was unlawful.
(B) The corporation may 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 the best interest of the
corporation; but no indemnification shall be made in respect of any
claim, issue, or matter as to which such person has 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.
(C) To the extent that a director, officer, employee, or agent of
a corporation has been successful on the merits in defense of any
action, suit, or proceeding referred to in (A) or (B) of this Article X
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.
(D) Any indemnification under (A) or (B) of this Article X (unless
ordered by a court) and as distinguished from (C) of this Article 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 (A) or (B) above. 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, if a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or by the shareholders.
(E) 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 (C) or (D) of this Article X upon receipt of
an undertaking by or on behalf of the director, officer, employee, or
agent to repay such amount unless it is ultimately determined that he is
entitled to be indemnified by the corporation as authorized in this
Article X.
(F) The indemnification provided by this Article X shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any applicable law, 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.
(G) 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 provisions of this Article X."
Item 16. Exhibits.
Exhibit
Number Description of Exhibit
3.1 Articles of Incorporation of Delta Petroleum Corporation
(incorporated by reference to Exhibit 3.1 to the Company's
Form 10 filed September 9, 1987 with the Securities and
Exchange Commission).
3.2 Bylaws of Delta Petroleum Corporation (incorporated by
reference to Exhibit 3.2 to the Company's Form 10 filed
September 9, 1987 with the Securities and Exchange
Commission).
4.1 Statement of Designation and Determination of Preferences of
Series A Convertible Preferred Stock is incorporated by
reference to Exhibit 28.3 of the Current Report on Form 8-K
dated June 15, 1988.
4.2 Statement of Designation and Determination of Preferences of
Series B Convertible Preferred Stock is incorporated by
reference to Exhibit 28.1 of the Current Report on Form 8-K
dated August 9, 1989.
4.3 Statement of Designation and Determination of Preferences of
Series C Convertible Preferred Stock is incorporated by
reference to Exhibit 4.1 of the Current Report on Form 8-K
dated June 27, 1996.
5.1 Opinion of Krys Boyle Freedman & Sawyer, P.C. regarding
legality.*
23.1 Consent of KPMG Peat Marwick LLP**
23.2 Consent of Krys Boyle Freedman & Sawyer, P.C. (contained in
Exhibit 5.1).*
24.1 Power of Attorney (contained in the Signature section of this
Registration Statement).**
* Filed previously as an exhibit in the S-3 registration statement
filed on April 21, 1995.
** Filed herewith.
Item 17. Undertakings.
The undersigned Company hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to the 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 purposes 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.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or 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 the
time shall be deemed to be the initial bona fide offering.
(5) That, insofar as indemnification for liabilities arising under
the Securities Act of 1933 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
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 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 Act
and will be governed by the final adjudication of such issue.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933,
the Company 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 Amendment No. 2 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Denver and State of Colorado on the 20st day of October, 1997.
DELTA PETROLEUM CORPORATION
By s/Aleron H. Larson, Jr.
Aleron H. Larson, Jr., Secretary,
Chairman of the Board, Treasurer,
and Principal Financial Officer
In accordance with the requirements of the Securities Act of 1933,
this Amendment No. 2 to the Registration Statement has been signed below
by the following persons in the capacities and on the date indicated.
Signatures Title Date
s/Aleron H. Larson, Jr. Principal Financial 10/20/97
Aleron H. Larson, Jr. Officer, Chairman
of the Board, Treasurer,
Secretary and Director
s/Roger A. Parker President and 10/20/97
Roger A. Parker* Director
s/Kevin K. Nanke Controller and 10/20/97
Kevin K. Nanke* Principal Accounting
Officer
s/Terry D. Enright Director 10/20/97
Terry D. Enright*
s/Jerrie F. Eckelberger Director 10/20/97
Jerrie F. Eckelberger*
* The signator, Director and/or Officer of Delta Petroleum
Corporation (the "Company"), further does hereby constitute and appoint
Aleron H. Larson, Jr., his true and lawful attorney and agent, with
power of substitution, to sign a Registration Statement under the
Securities Act of 1933 to be filed with the Securities and Exchange
Commission, and to do any and all acts and things and to execute any and
all instruments for him in his name and in the capacity indicated above,
which said attorney and agent, may deem necessary or advisable to enable
the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with such Registration Statement, including
specifically, but without limitation, power and authority to sign for
him in his name and in the capacity indicated above, any and all
amendments (including post-effective amendments) thereto; and he does
hereby ratify and confirm all that said attorney and agent, or his
substitute or substitutes, or any of them, shall do or cause to be done
by virtue of this Power of Attorney.
Consent of Independent Auditors
The Board of Directors
Delta Petroleum Corporation:
We consent to the incorporation by reference in Amendment No. 2 to the
registration statement on Form S-3 (No. 33-91452) of Delta Petroleum
Corporation of our report dated September 16, 1997 relating to the
consolidated balance sheets of Delta Petroleum Corporation and subsidiary
as of June 30, 1997 and 1996, and the related consolidated statements of
operations, stockholders' equity, and cash flows for the years then ended,
which report appears in the June 30, 1997 Annual Report on Form 10-KSB
of Delta Petroleum Corporation, and to the reference
to our firm under the heading "Experts" in the prospectus.
s/KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Denver, Colorado
October 20, 1997
