As Filed With the Securities and Exchange Commission on September 15, 2006
Registration Statement No. __________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT of 1933
DELTA PETROLEUM CORPORATION
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(Exact Name of Registrant in its Charter)
Delaware 84-1060803
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Suite 4300, 370 17th Street, Denver, Colorado 80202
(303) 293-9133
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(Address and telephone number of principal
executive offices and principal place of business)
Delta Petroleum Corporation 2006 New-Hire Equity Incentive Plan
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(Full title of plan)
Roger A. Parker, Chief Executive Officer
Delta Petroleum Corporation
Suite 4300, 370 17th Street
Denver, Colorado 80202
(303) 293-9133
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(Name, address and telephone
number of agent for service)
Copy to:
James P. Beck, Esq.
Krys Boyle, P.C.
600 Seventeenth Street, Suite 2700 South
Denver, Colorado 80202
(303) 893-2300
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Class of Offering Aggregate Amount of
Securities to be Amount to be Price Offering Registration
Registered Registered Per Share Price Fee
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Common Stock, 150,000 $20.01 (1) $3,001,500(1) $321.16
$.01 Par Value
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(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 National
Market on September 12, 2006 of $20.01.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Commission are
incorporated in this Registration Statement:
1. Transition Report on Form 10-K for the transition period from July 1,
2005 to December 31, 2005.
2. Amendments to Transition Report on Form 10-K for the transition period
from July 1, 2005 to December 31, 2005 filed on April 28, 2006 and May
5, 2006.
3. Quarterly Reports on Form 10-Q for the quarters ended March 31, 2006
and June 30, 2006.
4. Current Reports on Form 8-K filed on June 26, 2006; May 1, 2006; April
13 and 20, 2006; March 6, 8, 10, and 14, 2006; February 1, 3, 13, and
22, 2006; and January 12, 2006 (excluding information furnished
pursuant to Item 2.02 or Item 7.01 and any exhibits thereto).
5. Registration Statement on Form S-3 (containing description of Delta
common stock) filed on February 1, 2006.
6. All documents filed by the Company, subsequent to the date of this
prospectus, under 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 Kevin K. Nanke, Delta Petroleum
Corporation, Suite 4300, 370 17th Street, Denver, Colorado 80202, or (303)
293-9133.
Item 4. Description of Securities. Not applicable.
Item 5. Interests of Named Experts and Counsel. Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL") permits the
board of directors of Delta Petroleum Corporation, a Delaware corporation
("Delta") to indemnify any person against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and
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reasonably incurred by him or her in connection with any threatened, pending or
completed action, suit, or proceeding in which such person is made a party by
reason of his or her being or having been a director, officer, employee, or
agent of Delta, or serving or having served, at the request of Delta, as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933
(the "Act"). The statute provides that indemnification pursuant to its
provisions is not exclusive of other rights of indemnification to which a person
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
Article 10 of Delta's Certificate of Incorporation provides for mandatory,
rather than permissive, indemnification of former and current officers and
directors of Delta with respect to expenses incurred in any action brought
against those persons as a result of their role with Delta if certain conditions
are satisfied. Subject to certain conditions, the Certificate of Incorporation
provides for mandatory advancement of expenses incurred by those persons in
defending such an action. Under the DGCL, a person seeking indemnification is
generally required to have acted in a manner he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation.
As permitted by sections 102 and 145 of the DGCL, Article 9 of Delta's
Certificate of Incorporation eliminates the liability of a Delta director for
monetary damages to Delta and its stockholders arising from a breach of a
director's fiduciary duty except to the extent such exemption from liability or
limitation thereof is not permitted under the DGCL.
In addition, pursuant to Section 10.8 of Delta's Certificate of
Incorporation, Delta may maintain insurance, at its own expense, to protect
itself and any director, officer, employee or agent of Delta or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not Delta would have the power to
indemnify such person against such expense, liability or loss under the DGCL.
Item 7. Exemption from Registration Claimed.
With regard to the shares of the Company's common stock issued in
restricted stock grants to certain employees of the Company, the Company relied
on the exemption provided by Section 4(2) under the Securities Act of 1933, as
amended. Each of the persons had access to complete information about the
Company. A restrictive legend was placed on the certificates issued to these
persons and stop transfer orders were entered with the Company's transfer agent.
Item 8. Exhibits.
Exhibit
Number Description Location
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5.1 Opinion of Krys Boyle, P.C.
regarding legality. Filed herewith electronically.
23.1 Consent of KPMG LLP. Filed herewith electronically.
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Exhibit
Number Description Location
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23.2 Consent of Krys Boyle, P.C. (Contained in Exhibit 5.1)
23.3 Consent of Ralph E. Davis
Associates, Inc. Filed herewith electronically.
23.4 Consent of Mannon
Associates, Inc. Filed herewith electronically.
Item 9. Undertakings.
The undersigned Registrant 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;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the SEC
by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference 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; and
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(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 Registrant pursuant to the foregoing provisions, 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.
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SIGNATURES
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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver and State of Colorado on the 15th day of
September, 2006.
DELTA PETROLEUM CORPORATION
By: /s/ Roger A. Parker
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Roger A. Parker, Chief Executive
Officer
By: /s/ Kevin K. Nanke
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Kevin K. Nanke, Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933, this Form S-8
Registration Statement has been signed below by the following persons on our
behalf and in the capacities and on the dates indicated.
Signature and Title Date
/s/ Aleron H. Larson, Jr. September 15, 2006
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Aleron H. Larson, Jr., Director
/s/ Roger A. Parker September 15, 2006
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Roger A. Parker, Director
/s/ James B. Wallace September 15, 2006
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James B. Wallace, Director
/s/ Jerrie F. Eckelberger September 15, 2006
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Jerrie F. Eckelberger, Director
/s/ Russell S. Lewis September 15, 2006
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Russell S. Lewis, Director
/s/ Kevin R. Collins September 15, 2006
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Kevin R. Collins, Director
/s/ Jordan R. Smith September 15, 2006
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Jordan R. Smith, Director
/s/ Neal A. Stanley September 15, 2006
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Neal A. Stanley, Director
/s/ James P. Van Blarcom September 15, 2006
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James P. Van Blarcom, Director
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EXHIBIT INDEX
Exhibit
Number Description Location
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5.1 Opinion of Krys Boyle, P.C.
regarding legality. Filed herewith electronically.
23.1 Consent of KPMG LLP. Filed herewith electronically.
23.2 Consent of Krys Boyle, P.C. (Contained in Exhibit 5.1)
23.3 Consent of Ralph E. Davis
Associates, Inc. Filed herewith electronically.
23.4 Consent of Mannon
Associates, Inc. Filed herewith electronically.