As Filed With the Securities and Exchange Commission on February 11, 2000
Registration Statement No. 33-91452
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT of 1933
__________________________________
DELTA PETROLEUM CORPORATION
(Exact Name of Registrant in its Charter)
Colorado
(State or other jurisdiction of 84-1060803
incorporation or organization) (I.R.S. Employer 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)
Delta Petroleum Corporation 1993 Incentive Plan
(Full title of plan)
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 & Sawyer, P.C.
600 Seventeenth Street, Suite 2700 South
Denver, Colorado 80202-5427
(303) 893-2300
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 --
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 1,663,438 $2.375 $1,042.98
(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 January 31, 2000.
REOFFER PROSPECTUS pursuant to General Instruction C of Form S-8
PART I OF FORM S-3
DELTA PETROLEUM CORPORATION
1,663,438 Shares of Common Stock
$0.01 par value per share
Of the 1,663,438 shares of the Common Stock, $0.01 par value
(the "Common Stock"), of Delta Petroleum Corporation ("Delta,"
"Company," or "we," "our" or "us") registered hereunder, all
1,663,438 shares are for the account of the owners (collectively,
the "Selling Shareholders"). We will not receive any proceeds
from the sale of the Common Stock sold by the Selling
Shareholders.
Our Common Stock is traded on the Nasdaq Small-Cap Market
under the symbol "DPTR." On January 31, 2000, the reported
closing price for our Common Stock on the Nasdaq Small-Cap Market
was $2-3/8.
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE of RISK
AND IMMEDIATE DILUTION. THESE SECURITIES SHOULD BE PURCHASED
ONLY BY PERSONS WHO CAN BEAR THE ECONOMIC RISK OF THIS
INVESTMENT. SEE "RISK FACTORS" BEGINNING ON PAGE 6 AND
"DILUTION" BEGINNING ON PAGE 10.
____________________________
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.
We anticipate 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 February 10, 2000.
AVAILABLE INFORMATION
We are subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and in accordance therewith file reports and other information
with the Securities and Exchange Commission (the "Commission").
Such reports and other information filed by us 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.
We have filed with the Commission a Registration Statement
on Form S-8 (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 us, 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 documents that we have filed with the
Commission 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. Current Report on Form 8-K filed on December 10, 1999,
Exchange Act reporting number 0-16203.
2. Quarterly Report on Form 10-QSB filed on November 15, 1999,
Exchange Act reporting number 0-16203.
3. Current Report on Form 8-K filed on November 13, 1999 (as
amended on January 12, 2000), Exchange Act reporting number
0-16203.
4. Annual Report on Form 10-KSB for the fiscal year ended June
30, 1999, Exchange Act reporting number 0-16203.
5. Current Report on Form 8-K filed on August 26, 1999,
Exchange Act reporting number 0-16203.
6. Current Report on Form 8-KA filed on August 26, 1999,
Exchange Act reporting number 0-16203.
7. All documents filed by us, subsequent to the date of this
Prospectus, 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.
We 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
RISK FACTORS......................................... 6
USE OF PROCEEDS...................................... 10
DETERMINATION OF OFFERING PRICE...................... 10
DILUTION............................................. 10
RECENT MATERIAL CHANGES IN OUR BUSINESS.............. 11
SELLING SHAREHOLDERS................................. 11
PLAN OF DISTRIBUTION................................. 13
DESCRIPTION OF COMMON STOCK.......................... 14
EXPERTS.............................................. 14
LEGAL MATTERS........................................ 15
RISK FACTORS
Prospective investors should consider carefully, in addition
to the other information in this Prospectus, the following:
1. Substantial Debt Obligations and Shortages of Funding.
As the result of debt obligations that we recently incurred in
connection with our purchase of oil and gas properties from
Whiting Petroleum, we are obligated to make substantial monthly
payments to our lender on a loan which encumbers the production
revenue from 11 onshore wells and the offshore Point Arguello
Unit. Although we intend to seek outside capital to either
refinance the debt or provide a cushion, at the present time we
are almost totally dependent upon the revenues that we receive
from our oil and gas properties to service the debt. In the
event that oil and gas prices and/or production rates drop to a
level that we are unable to pay the $150,000 principal and
interest minimum payment per month that is required by the debt
agreements, it is likely that we would lose our interest in the
properties that we recently purchased. In addition, our level of
oil and gas activities, including exploration and development of
existing properties, and additional property acquisition, will be
significantly dependent on our ability to successfully conclude
funding transactions. No assurances can be given that any such
funding transactions will be completed successfully.
2. History of Losses; No Assurance of Profitability. We
have incurred substantial losses from our operations to date, and
at June 30, 1999 we had an accumulated deficit of $19,578,359.
During the year ended June 30, 1999, we had total revenues of
$1,717,651, expenses of $4,716,410 and a net loss for the year of
$2,998,759. During the fiscal year ended June 30, 1998 we had
total revenues of $2,163,615, expenses of $3,125,618 and a net
loss for the year of $962,003. There are no assurances that we
will ever achieve profitability on a consistent basis.
3. Substantial Cost to Develop Certain of Our Offshore
California Properties; Development May Be Adversely Affected by
the California Offshore Oil and Gas Energy Resources ("COOGER")
Study; Company Holds Minority Interest in Certain Properties and
Generally Will Not Control Timing of Development. Certain of our
offshore California undeveloped properties, in which we have
ownership interests ranging from 2.49% to 24.22%, are
attributable to our interests in four of our five federal units
(plus one additional lease) located offshore California near Santa Barbara.
The cost to develop these properties will be very substantial.
The cost to develop all of these offshore California properties
in which we own a minority interest, including delineation wells,
environmental mitigation, development wells, fixed platforms,
fixed platform facilities, pipelines and power cables, onshore
facilities and platform removal over the life of the properties
(assumed to be 38 years), is estimated to be in excess of $3
billion. Our share of such costs, based on our current ownership
interest, is estimated to be over $200 million. Operating
expenses for the same properties over the same period of time,
including platform operating costs, well maintenance and repair
costs, oil, gas and water treating costs, lifting costs and
pipeline transportation costs, are estimated to be approximately
$3.5 billion, with our share, based on our current ownership
interest, estimated to be approximately $300 million. There will
be additional costs of a currently undetermined amount to develop
the Rocky Point Unit. Each working interest owner will be required
to pay its proportionate share of these costs based upon the amount
of the interest that it owns. If we are unable to fund our share
of these costs or otherwise cover them through farmouts or other
arrangements then we could either forfeit our interest in
certain wells or properties in the form of delayed or reduced
revenues under our various unit operating agreements.
There can be no assurance that we can farmout our interests on
acceptable terms.
These units have been formally approved and are regulated by
the Minerals Management Service ("MMS") of the federal
government. While the federal government has recently attempted
to expedite the process of obtaining permits and authorizations
necessary to develop the properties, there can be no assurance
that it will be successful in doing so. The MMS has initiated
the California Offshore Oil and Gas Energy Resources (COOGER)
study at the request of the local regulatory agencies of the
affected Tri-Counties. The COOGER study seeks to present a long-
term regional perspective of potential onshore constraints that
should be considered when developing existing undeveloped
offshore leases. COOGER will project the economically
recoverable oil and gas production from offshore leases which
have not yet been developed. These projections will be utilized
to assist in identifying a potential range of scenarios for
developing these leases. The "worst" case scenario is that no
new development of existing offshore leases would occur. If this
scenario were ultimately to be adopted by governmental decision
makers and the industry as the proper course of action for
development, our offshore California properties would in all
likelihood have little or no value. We would seek to cause the
Federal government to reimburse us for all money spent by us and
our predecessors for leasing and other costs and/or for the value
of the oil and gas reserves found on the leases through our
exploration activities and those of our predecessors.
We do not have a controlling interest in and do not act as
the operator of any of the offshore California properties and
consequently we will generally not control the timing of either
the development of the properties or the expenditures for
development unless we choose to unilaterally propose the drilling
of wells under the relevant operating agreements.
4. Substantial Costs to Develop Reserves. We have
significant undeveloped properties in addition to those in
offshore California discussed in #3 above that will require
substantial costs to develop. During the year ended June 30,
1999, we participated in the drilling and/or
completion/recompletion of four gas wells and seven non-
productive wells. We anticipate that we will have participated in
the drilling of a total of seven to ten new wells during the
fiscal year ending June 30, 2000. Although we believe that we
will participate in the drilling of additional wells during the
current fiscal year, our level of oil and gas activity, including
exploration and development and property acquisitions, will be to
a significant extent dependent upon our ability to successfully
conclude funding transactions, of which there is no assurance.
We expect 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 us and 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 our
sale of working interests in oil and gas leases, production
revenues, sales of our securities, and funds from any funding
transactions in which we might engage.
5. Dependence on Oil and Gas Prices. Our current ability
to service our debt and our oil and gas exploration and
production activities are dependent on the market prices of 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 our 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 our liquidity and capital resources.
Additionally, the valuation of our proven and unproven oil and
gas properties and our production revenues could vary and
fluctuate significantly with changes in oil and gas prices.
6. Shares Available for Resale. Of our presently
outstanding shares of Common Stock, 918,980 shares of "restricted
securities" (the "UFG Owned Shares") are owned by our 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 us, 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. Subject to these restrictions, all of the UFG
Owned Shares are currently eligible for resale. Investors should
be aware that such sale of the UFG Owned Shares may, in the
future, have a depressive effect on the price of our Common
Stock.
7. Competition. Oil and gas exploration and acquisition
of undeveloped properties is a highly competitive and speculative
business. We compete with a number of other companies, including
major oil companies and other independent operators which may be
more experienced and may have greater financial resources. We do
not hold a significant competitive position in the oil and gas
industry.
8. Governmental Regulation and Control. Our activities
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 our business, the extent of which cannot be predicted,
and may require us 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 on us of such
governmental policies and controls.
9. Dependence Upon Operators. We currently operate only a
small portion of the wells in which we own an interest, and we
are dependent upon the operator of the wells that we do not
operate 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 we, as a working interest owner, may have some
voice in the decisions concerning the wells, we are not the
primary decision maker concerning them. Therefore we may be
unable to cause wells to be drilled even though we may have the
funds with which to pay our proportionate share of the expenses
of such drilling.
10. General Risks Inherent in Oil and Gas Exploration and
Operations. Our business is subject to risks inherent in the
exploration, development and operation of oil and gas
properties, including but not limited to environmental damage,
personal injury, and other occurrences that could result in our
incurring substantial losses and liabilities to third parties.
In our own activities, we purchase insurance against risks
customarily insured against by others conducting similar
activities. Nevertheless, we are 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 us.
11. No Long-Term Contracts. We do not have any long-term
supply or similar agreements with governments or authorities
pursuant to which we act as producer. We are therefore dependent
upon our ability to sell oil and gas at the prevailing well head
market price. There can be no assurance that purchasers will be
available or that the prices they are willing to pay will remain
stable.
12. Lack of Diversification. Since all of our resources
are devoted to one industry, purchasers of our Common Stock will
be risking essentially their entire investment in a company that
is focused only on oil and gas activities.
13. Voting Rights. Holders of our 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 our directors, and holders of the Common Stock
offered hereby will not be able to elect a representative to our
Board of Directors. See "DESCRIPTION OF COMMON STOCK."
14. Lack of Prospective Dividends. There can be no
assurance that our proposed operations will result in sufficient
revenues to enable us 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 our
operations will be used to finance our growth and that dividends
will not be paid to holders of Common Stock. See "DESCRIPTION OF
COMMON STOCK."
15. No Assurance of a Public Market. Our Common Stock is
listed on the Nasdaq Small-Cap Market and trades under the symbol
"DPTR." To date, trading volume for our Common Stock has been
relatively light. Average weekly trading volume for the fiscal
year ended June 30, 1999 was 10,445 shares. The high sales price
during such period was $4.00, while the low sales price during
the same period was $1.125.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the Common
Stock being registered hereunder for sale by the Selling
Shareholders. We may receive proceeds 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 our properties.
DETERMINATION OF OFFERING PRICE
The shares being registered herein are being sold by Selling
Shareholders, and not by us, and are therefore being sold at the
market price as of the date of sale. Our Common Stock is traded
on the Nasdaq Small-Cap Market under the symbol "DPTR." On
January 31, 2000, the reported closing price for our Common Stock
on the Nasdaq Small-Cap Market was $2-3/8.
DILUTION
As of September 30, 1999, we had 6,653,902 shares of Common
Stock issued and outstanding with a net tangible book value of
$10,002,071 or $1.50 per share. Net tangible book value per
share represents the amount of our total assets excluding
intangible assets, less total liabilities, divided by the number
of shares of Common Stock outstanding. The following table set
forth the dilution to be incurred by investors acquiring Common
Stock. This dilution effect will not be reflected in the
Company's financial statements.
Assumed Purchase Price (1) $2.38
Net tangible book value per share at September 30, 1999 $1.50
Dilution to Purchasers of Common Stock $ .88
Dilution to Purchasers as Percentage of Purchase Price 36.97%
____________________
(1) Assumes a purchase price of $2.38. The closing bid price of
our Common Stock on NASDAQ on January 31, 2000 was $2.38.
RECENT MATERIAL CHANGES IN OUR BUSINESS
There have been no material changes in our business since
June 30, 1999 other than the recent drilling activity set forth
below and the changes disclosed in the Form 10-KSB for the fiscal
year ended June 30, 1999, the Form 10-QSB for the period ended
September 30, 1999 and/or the Forms 8-K filed since June 30,
1999.
Present Drilling Activity
Between July 1, 1999 and February 7, 2000, we participated
in the drilling of one new well with Slawson Exploration Company
on its properties in the Sacramento Basin. The well is
successful and will be selling gas within a few weeks. We plan
to participate in the drilling of one additional well on these
properties during the next 90 days.
SELLING SHAREHOLDERS
The following table indicates the Selling Shareholders
currently known to us. The calculations are based upon
outstanding shares at January 31, 2000 of 7,555,902.
Number of
Shares of
Common Stock % Held
Owned Prior to Prior to Common Stock
Name the Offering Offering to be Sold
Aleron H. Larson, Jr. 745,300(1) 9.07% 659,500(1)
Roger A. Parker 734,250(2) 8.99% 610,663(2)
Kevin K. Nanke 323,900(3) 4.11% 323,900(3)
Terry D. Enright 56,250(4) 0.74% 41,250(5)
Jerrie F. Eckelberger 28,125(7) 0.37% 28,125(7)
Number of
Shares of
Common Stock % Held
Owned After After the
Name the Offering Offering
Aleron H. Larson, Jr. 85,800 1.04%
Roger A. Parker 123,587 1.51%
Kevin K. Nanke -0- -0-
Terry D. Enright 15,000(6) 0.20%
Jerrie F. Eckelberger -0- -0-
1. 85,800 shares are owned directly by Mr. Larson's
family. Common stock to be sold includes 559,500 shares of
Common Stock underlying currently exercisable options to
purchase shares at $.05 per share and 100,000 shares
underlying currently exercisable options to purchase shares
at $1.75 per share. Mr. Larson is Chairman, Chief Executive
Officer, Secretary, Treasurer, and a Director of the
Company.
2. 123,587 shares are owned directly by Mr. Parker.
Common Stock to be sold includes 510,663 shares of Common
Stock underlying currently exercisable options to purchase
shares at $.05 per share and 100,000 shares underlying
currently exercisable options to purchase shares at $1.75
per share. Mr. Parker is President, Chief Operating
Officer and a Director of the Company.
3. Includes 98,900 shares of Common Stock underlying
currently exercisable options to purchase shares at $1.125
per share; 25,000 shares underlying currently exercisable
options to purchase shares at $1.5625 per share; 175,000
shares underlying currently exercisable options to purchase
shares at $1.75 per share; and 25,000 shares underlying
currently exercisable options to purchase shares at $.01 per
share. Mr. Nanke is the Company's Chief Financial Officer.
4. Includes 5,000 shares of Common Stock underlying
currently exercisable Class D warrants to purchase shares at
$1.25 per share; 10,000 shares underlying currently
exercisable Class I warrants to purchase shares at $3.50 per
share; 7,500 shares underlying currently exercisable options
to purchase shares at $3.30 per share; 7,500 shares
underlying currently exercisable options to purchase shares
at $3.13 per share; 7,500 shares underlying currently
exercisable options to purchase shares at $1.88 per share;
8,750 shares underlying currently exercisable options to
purchase shares at $1.36 per share; and 10,000 shares
underlying currently exercisable options to purchase shares
at $1.30 per share. Mr. Enright is a Director of the
Company.
5. Includes all shares listed in footnote 4 above
except for the shares underlying the Class D and Class I
warrants.
6. Includes Class D and I warrants referenced in
footnote 4 above.
7. Includes 1,875 shares of Common Stock underlying
currently exercisable options to purchase shares at $2.98
per share; 7,500 shares underlying currently exercisable
options to purchase shares at $1.88 per share; 8,750 shares
underlying currently exercisable options to purchase shares
at $1.36 per share; and 10,000 shares underlying currently
exercisable options to purchase shares at $1.30 per share.
Mr. Eckelberger is a Director of the Company.
We 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 us upon the exercise of
outstanding warrants or options by the Selling Shareholders. We
have 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 our company and our shareholders in
the reasonable business judgment of the Board of Directors. We
have 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. We will not pay selling
commissions and expenses associated with any such sales by any of
the Selling Shareholders. The Selling Shareholders have advised
us that sales of shares of our 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 price or at negotiated prices.
PLAN OF DISTRIBUTION
The Common Stock registered hereunder 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 Common Stock 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
Common Stock 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 us 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 of 1933,
as amended.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or
persons controlling us pursuant to the foregoing provisions, we
have 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
We are authorized to issue 300,000,000 shares of our $.01
par value Common Stock, of which 7,555,902 shares were issued and
outstanding as of January 31, 2000. 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 our assets
after payment of all liabilities. We do 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 us. All of the
outstanding shares of our Common Stock are fully paid and
nonassessable.
A total of 918,980 shares of our Common Stock that are owned
by Underwriters Financial Group, Inc. are subject to a voting
agreement with us, whereby Aleron H. Larson, Jr. and Roger A.
Parker, our Chief Executive Officer and President, 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 us or UFG.
EXPERTS
The Consolidated Financial Statements of Delta Petroleum
Corporation as of June 30, 1999 and 1998, and for each of the
years in the three-year period ended June 30, 1999, have been
incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and
auditing.
In addition, the Statement of Oil and Gas Revenue and Direct
Lease Operating Expenses of Oil and Gas Properties of Whiting
Petroleum acquired by Delta Petroleum Corporation for each of the
years in the two year period ended June 30, 1999 which appears in
the November 1, 1999 Form 8-K/A of Delta Petroleum Corporation
dated January 13, 2000 has been incorporated by reference
herein and in the registration statement in reliance upon the
report of KPMG 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 us 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 OUR AFFAIRS 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 REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
See, "Incorporation of Certain Documents by Reference"
in Reoffer Prospectus.
Item 4. Description of Securities. Not applicable
Item 5. Interests of Named Experts and Counsel. None to report
Item 6. 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 7. Exemption from Registration Claimed. Not applicable
Item 8. 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 (incorpo
rated 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. Filed herewith electronically.
23.1 Consent of KPMG LLP. Filed herewith
electronically.
23.2 Consent of KPMG LLP. Filed herewith
electronically.
23.3 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).
Item 9. 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; and
(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
Pursuant to 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-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 and State of Colorado on the 11th day of February,
2000.
DELTA PETROLEUM CORPORATION
By s/Aleron H. Larson, Jr.
Aleron H. Larson, Jr., Secretary,
Chairman of the Board, Treasurer,
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this 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. Chief Executive 2/11/00
Aleron H. Larson, Jr. Officer, Chairman
of the Board, Treasurer,
Secretary and Director
/s/Roger A. Parker President and ________
Roger A. Parker* Director
/s/Kevin K. Nanke Chief Financial Officer ________
Kevin K. Nanke* and Principal
Accounting Officer
/s/Terry D. Enright Director ________
Terry D. Enright*
/s/Jerrie F. Eckelberger Director ________
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.
KRYS BOYLE FREEDMAN & SAWYER, P.C.
Attorneys at Law
TELEPHONE Suite 2700 South Tower FACSIMILE
(303) 893-2300 600 Seventeenth Street (303) 893-2882
Denver, Colorado 80202-5427
February 10, 2000
Delta Petroleum Corporation
Suite 3310
555 17th Street
Denver, Colorado 80202
Dear Board of Directors:
We have acted as counsel to Delta Petroleum Corporation, a Colorado
corporation (the "Company"), in connection with the preparation and filing
with the Securities and Exchange Commission of a Registration Statement
on Form S-8 (the "Registration Statement"), pursuant to which the Company
is registering under the Securities Act of 1933, as amended, a total of
1,663,438 shares (the "Shares") of its common stock, $.01 par value
(the "Common Stock") for resale to the public. The Shares are to be sold
by the selling shareholders identified in the Registration
Statement (the "Selling Shareholders"). This opinion is being rendered
in connection with the filing of the Registration Statement.
All capitalized terms used herein and not otherwise defined shall have
the respective meanings given to them in the Registration Statement.
In connection with this opinion, we have examined the Company's Articles
of Incorporation and Bylaws, both as currently in effect; such other records
of the corporate proceedings of the Company and certificates of the
Company's officers as we have deemed relevant; and the Registration
Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon the foregoing and subject to the limitations set forth below,
we are of the opinion that the Shares have been duly and validly authorized
by the Company and will be, when issued in accordance with the Company's
Incentive Plan, duly and validly issued and fully paid and non-assessable.
Our opinion is limited to the laws of the State of Colorado, and we
express no opinion with respect to the laws of any other jurisdiction.
No opinion is expressed herein with respect to the qualification of the
Shares under the securities or blue sky laws of any state or any foreign
jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We hereby further consent to the reference to us
under the caption "Legal Matters" in the prospectus included in the
Registration Statement.
Very truly yours,
KRYS BOYLE FREEDMAN & SAWYER, P.C.
By: /s/ Stanley F. Freedman, P.C.
Stanley F. Freedman, P.C.
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference of our
report dated December 29, 1999 relating to the Statement of
Oil and Gas Revenue and Direct Lease Operating Expenses of
Oil and Gas Properties of Whiting Petroleum Corporation
acquired by Delta Petroleum Corporation for each of the
years in the two year period ended June 30, 1999 which
report appears in the Form 8-K of Delta Petroleum
Corporation dated January 13, 2000, and to the reference to
our firm under the heading "Experts" in the prospectus.
KPMG LLP
Denver, Colorado
February 9, 2000
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference of our
report dated September 21, 1999 on the consolidated
financial statements of Delta Petroleum Corporation as of
June 30, 1999 and 1998, and for each of the years in the
three year period then ended which report appears in the
June 30, 1999 Annual Report on Form 10-KSB of Delta
Petroleum Corporation and to the reference to our firm under
the heading "Experts" in the prospectus.
KPMG LLP
Denver, Colorado
February 9, 2000
