As filed with the Securities and Exchange Commission on February 13, 2003
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DELTA MUTUAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 14-1818394
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
6723 Whittier Ave., Suite 203
McLean, VA 22101
(Address of principal executive offices)
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Delta Mutual, Inc. 2001 Employee Stock Option Plan
Legal Services Agreement between Registrant and J. Dapray Muir
Services Agreement between Registrant and Peter Russo
Services Agreement between Registrant and Kenneth A. Martin
(Full Titles of Plans)
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Kenneth A. Martin
6723 Whittier Ave., Suite 203
McLean, VA 22101
(Name and address of agent for service)
(703) 918-0350
(Telephone number, including area code of Agent for Service)
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Copies to:
Michael Paige, Esq.
Jackson & Campbell, P.C.
1120 20th Street, N.W., South Tower
Washington, D.C. 20036
(202) 457-1600
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CALCULATION OF REGISTRATION FEE
Proposed
Maximum
Proposed Aggregate
Title of Securities Amount to Be Maximum Offering Offering Amount of
To Be Registered Registered Price Per Share Price* Registration Fee
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Common Stock,
$.0001 Par Value
Per Share 2,120,000 shs $ 2.60 $5,512,000 $507.10
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(*)Pursuant to Rule 457(h)(1), under the Securities Act of 1933, computed on the
basis of the last sale price of the Common Stock as reported in the
over-the-counter market on February 12, 2003.
(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement shall also
cover any additional shares of the common stock of Delta Mutual, Inc. (the
"Company") that become issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
Company's receipt of consideration that results in an increase in the
number of the Company's outstanding shares of common stock.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) under the Securities
Act. The offering price per share is based upon the reported last sale
price of the Company's common stock on February 12, 2003, in the
over-the-counter market. The following chart illustrates the calculation of
the registration fee:
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Securities No. of Offering Aggregate Offering
Shares Price per Price
Share
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Common Stock, par value $.0001 per share, issuable upon 2,000,000 $2.60 $5,200,000
exercise of options granted under the Company's 2001
Employee Stock Option Plan
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Common Stock, par value $.0001 per share, to be issued to 30,000 $2.60 $ 78,000
Kenneth A. Martin
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Common Stock, par value $.0001 per share, to be issued to 40,000 $2.60 $ 104,000
Peter Russo
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Common Stock, par value $.0001 per share, to be issued to 50,000 $2.60 $ 130,000
J. Dapray Muir
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Registration Fee (.000092) 2,120,000 $2.60 $ 507.10
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1: PLAN INFORMATION.
Not applicable.
ITEM 2: REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not applicable.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), File No. 000-28195, are
hereby incorporated by reference in this Registration Statement:
1. The Company's Annual Report on Form 10-KSB under the Exchange Act,
as filed with the Commission on April 16, 2002.
2. The Company's Registration Statement on Form 10-SB under the
Exchange Act, as filed with the Commission on May 5, 2000, together with
Amendment No. 1 thereto, filed with the Commission on June 15, 2000, and the
description of common stock set forth therein, including any amendments or
reports filed for the purpose of updating such description.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to
the date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and made a part hereof from the date of the filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
The Registrant's certificate of incorporation, as amended, authorizes the
issuance of up to 20,000,000 shares of the Registrant's common stock, $0.0001
par value per share. Currently, the Registrant has approximately 1,177,000
shares of common stock outstanding.
The Registrant's common stock has no preemptive, conversion or
redemption rights or sinking fund provisions and all of the issued and
outstanding shares of the Registrant's common stock are fully paid and
nonassessable.
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Holders of the Registrant's common stock are entitled to one vote, in
person or by proxy, for each share of the Registrant's common stock held of
record in the stockholder's name on the books of the Registrant as of the record
date on any matter submitted to the vote of the stockholders. Cumulative voting
in the election of directors is not available to stockholders of the Registrant.
Each share of the Registrant's common stock has the same rights, privileges and
preferences as every other share and will share equally in the Registrant's net
assets upon liquidation or dissolution after satisfaction of liabilities.
The Registrant's stockholders are entitled to dividends when, and if,
declared by the Registrant's board of directors out of funds legally available
therefor, and after satisfaction of the prior rights of holders of any
outstanding preferred stock, if any (subject to certain restrictions on payment
of dividends imposed by the laws of Delaware).
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's certificate of incorporation, as amended, provides that its
directors and officers shall be indemnified to the fullest extent permissible
under Delaware law. The certificate of incorporation also provides that a
director shall not be liable to the Registrant or its stockholders for monetary
damages for breach of fiduciary duty as a director.
Section 102(b) of the Delaware General Corporation Law authorizes a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged breach of the director's
"duty of care." While this statute does not change directors' duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or rescission. The statute has no effect on a director's duty of
loyalty or liability for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, illegal payment of
dividends or stock redemptions or repurchases, or for any transaction from which
the director derives an improper personal benefit. As permitted by the statute,
the Registrant has adopted provisions in its certificate of incorporation which
eliminate to the fullest extent permissible under Delaware law the personal
liability of its directors to the Registrant and its stockholders for monetary
damages for breach or alleged breach of their duty of care.
Section 145 of the Delaware General Corporation Law provides for the
indemnification of officers, directors, employees and agents of a corporation.
Section 145 of the Delaware General Corporation Law provides for indemnification
in terms sufficiently broad to indemnify such individuals, under certain
circumstances, for liabilities (including reimbursement of expenses incurred)
arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
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Exhibits
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3.1 Articles of Incorporation of the Company, as currently in effect,
incorporated herein by reference to Exhibit 3.1 to Amendment No. 1 to the
Company's Registration Statement on Form 10-SB filed with the Commission on
June 15, 2000.
3.2 By-Laws of the Company, incorporated herein by reference to Exhibit 3.2 to
Amendment No. 1 to the Company's Registration Statement on Form 10-SB filed
with the Commission on June 15, 2000.
3.2a Amendment to Article III, Section I of the By-Laws, incorporated by
reference to the Company's quarterly report on Form 10-QSB, filed with the
Commission on November 21, 2000.
5.1* Opinion of Jackson & Campbell, P.C., counsel to the Company, regarding the
legality of the Common Stock being registered.
10.2 Delta Mutual, Inc. 2001 Employee Stock Option Plan, incorporated herein by
reference to Appendix B to the Company's definitive Information Statement
pursuant to Section 14C of the Exchange Act, filed with the Commission on
December 6, 2001.
10.7* Agreement, dated January 13, 2003, between the Company and Kenneth A.
Martin.
10.8* Agreement, dated February 3, 2003, between the Company and Peter Russo.
10.9* Agreement, dated February 4, 2003, between the Company and J. Dapray Muir.
23.1* Consent of Wiener, Goodman & Company PC.
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* Filed herewith.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: to include any
material information with respect to the plan of distribution not previously
disclosed in this registration statement or any material change to such
information in this registration statement; (2) that, for the purpose of
determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and (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.
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(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the registrant's Certificate of Incorporation or
By-Laws, by contract, or otherwise, the registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
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 McLean, Virginia, on February 13, 2003.
DELTA MUTUAL, INC.
(Registrant)
By: /s/ Kenneth A. Martin
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Title: President & Principal Executive and
Financial Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated.
Signature Titles Date
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/s/ Kenneth A. Martin President and February 13, 2003
------------------------ Director
Kenneth A. Martin
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INDEX TO EXHIBITS
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5.1 Opinion of Jackson & Campbell, P.C., counsel to the Company, regarding the
legality of the Common Stock being registered.
10.7 Agreement, dated January 13, 2003, between the Coompany and Kenneth A.
Martin.
10.8 Agreement, dated February 3, 2003, between the Company and Peter Russo.
10.9 Agreement, dated February 4, 2003, between the Company and J. Dapray Muir.
23.1 Consent of Wiener, Goodman & Company, PC
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