As Filed with the Securities and Exchange Commission on June 22, 2004
Registration Number: 000-50613
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DEVELOCAP, Inc.
(Exact name of registrant as specified in its charter)
Nevada applied for
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
180 Pineridge Drive
Bainbridge, GA 39817-8261
(Address of principal executive offices)
Develocap, Inc.
2004 Non-Statutory Stock Option Plan
(Full title of the Plan)
Jimmy B. Holton
180 Pineridge Drive
Bainbridge, GA 39817-8261
Telephone: (219) 246-6060
(Name, address and telephone number of agent for service.)
CALCULATION OF REGISTRATION FEE (1) (2)
Proposed
maximum Proposed maximum Amount of
Title of Securities Amount to be offering price aggregate offering registration
to be registered registered per share price fee
- ------------------- ------------ -------------- ------------------ ------------
<s> <c> <c> <c> <c>
Common Stock
$.001 par value 20,000,000 $.001 $20,000 $2.54
(1) Registration fee has been calculated based on the exercise price
paid for all issued shares which is also the exercise price for
outstanding options for issuance of underlying shares being registered.
Pursuant to Rule 457(h), the offering price of such shares is estimated
solely for the purpose of determining the registration fee.
(2) This Registration Statement also covers any additional shares of
Common Stock that may be offered or issued under the 2004 Non-Statutory
Stock Plan as a result of any stock dividends, stock splits,
recapitalizations or any other similar transactions.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents are incorporated by reference in the
registration statement:
(a) The Registrant's Form 10-SB Registration Statement filed March 2,
2004 (SEC File No.: 000-50613) Registration Statement;
(b) All other reports filed by the registrant pursuant to sections
13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of
the year covered by the Form 10-SB referred to in (a) above; and
(c) Not Applicable.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment to the registration
statement which indicates that all of the shares of common stock
offered have been sold or which deregisters all of such shares then
remaining unsold, shall be deemed to be incorporated by reference in
the registration statement and to be a part hereof from the date of
filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes 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
registration statement.
Item 4. Description of Securities
The total number of shares authorized which the corporation shall have
authority to issue is 200,000,000 shares, of which 199,000,000 shares
shall be Common Stock, par value $.001 per share without cumulative
voting rights and without any preemptive rights and 1,000,000 shares
shall be Preferred Stock, par value $.001 per share.
Item 5. Interest of Named Experts and Counsel
Jody M. Walker, counsel to the Company, owns 5,000,000 shares of common
stock and holds options to purchase 1,000,000 shares at a price of
$.001 per share.
Item 6. Indemnification of Directors and Officers
The statute, charter provision, bylaw, contract, or other arrangement
under which any controlling person, director or officer of the
Registrant is insured or indemnified in any manner against any
liability which he or may incur in his or her capacity as such, is as
follows:
(a) Subsection (1) of Section 78.751 of the Nevada Corporation Law
empowers a corporation to "indemnify any person who 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, except 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 the action, suit or proceeding if he acted in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests 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, conviction, or upon a plea
of nolo contendere or its equivalent, does 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 or not opposed to the best
interests of the corporation, and that, with respect to any criminal
action or proceeding, he had reasonable cause to believe that his
conduct was unlawful."
Subsection (2) of Section 78.751 empowers a corporation to "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 amounts paid in settlement and attorneys' fees actually and
reasonably incurred by him in connection with the defense or settlement
of the action or suit if he acted in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of
the corporation. Indemnification may not be made for any claim, issue
or matter as to which such a person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the
action or suit was brought or other court of competent jurisdiction
determines upon application that in view of all the circumstances of
the case, the person is fairly and reasonably entitled to indemnify for
such expenses as the court deems proper."
Subsection 78.751(3) further provides that "to the extent that a
director, officer, employee or agent of a corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections 1 and 2, or in defense of any
claim, issue or matter herein, he must be indemnified by the
corporation against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense."
(b) The Registrant's Articles of Incorporation provides that the
Registrant shall indemnify directors, officers, employees and agents to
the full extent allowed for under the Nevada Business Corporation 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 HE 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 THE SECURITIES ACT IS THEREFORE UNENFORCEABLE.
In the event that a claim for indemnification against such liabilities
(other than the payment by Registrant of expenses incurred or paid by a
director, officer or controlling person of 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 of 1933, as amended, and will be governed by the final
adjudication of such issue.
Item 7. Exemption from Registration Claimed
None.
Item 8. Exhibits
The exhibits to the Registration Statement are listed in the Exhibit
Index elsewhere herein.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
i. To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
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 thereto) which, individually or in the
aggregate, represents 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;
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) shall not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in -periodic reports filed
by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
2. That, for the purpose 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.
(b) The undersigned registrant hereby undertakes 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 Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 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
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or
Rule 124c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or cause
to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described in Item 6, or otherwise, the registrant 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
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 Act and will be
governed by the final adjudication of such issue.
SIGNATURES
The Registrant
Pursuant to the requirements of the Securities Act of 1933, 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 or amendment thereto to be signed on
its behalf by the undersigned, thereunto duly authorized, in Norcross,
Georgia on June 18, 2004.
Develocap, Inc.
/s/ Jimmy B. Holton
-------------------------
By: Jimmy B. Holton
President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed by the
following persons in the capacities and on the dates indicated.
Name Date
- ---- ----
/s/ Jimmy B. Holton
- ------------------------- June 18, 2004
Jimmy B. Holton
President, CFO, Controller
and Director
/s/ Stephen B. Schneer
- ------------------------- June 18, 2004
Stephen B. Schneer
Director
Exhibit Page in
Index Sequential
- ----- Number
System
----------
1. Not Applicable
2. Not Applicable
3. Not Applicable
4. Instruments defining the rights of security holders -
2004 Non-Statutory Stock Option Plan.
5. Consent and Opinion of Jody M. Walker, 7841 South Garfield
Way, Centennial, Colorado 80122 regarding legality of
securities registered under this Registration Statement and
to the references to such attorney in the Registration
Statement on Form S-8
6. Not Applicable
7. Not Applicable
8. Not Applicable
9. Not Applicable
10. Not Applicable
11. Not Applicable
12. Not Applicable
13. Not Applicable
14. Not Applicable
15. Not Applicable
16. Not Applicable
17. Not Applicable
18. Not Applicable
19. Not Applicable
20. Not Applicable
21. Not Applicable
22. Not Applicable
23. Consent of Sherb & Co., LLP
Certified Public Accountants for the Company
24. Not Applicable
25. Not Applicable
26. Not Applicable
27. Not Applicable
99. Prospectus dated January 27, 2004