As filed with the Securities and Exchange Commission on September 15, 1997
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
LARK TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 73-1461841
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9545 KATY FREEWAY, SUITE 465
HOUSTON, TEXAS 77024
(Address of Principal Executive Offices Including Zip Code)
LARK TECHNOLOGIES, INC. 1997 NONQUALIFIED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
(Full title of the Plan)
Douglas B. Wheeler
Vice President, Finance Copy to:
9545 Katy Freeway, Suite 465 William D. Gutermuth
Houston, Texas 77024 Bracewell & Patterson, L.L.P.
(713) 464-7488 711 Louisiana Street, Suite 2900
(Name, address and telephone number Houston, Texas 77002-2781
of agent for service) (713) 223-2900
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLES 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, 30,000
$0.001 par value shares $1.44 $43,200 $100.00
==================== ============== ================= ================== ==============
</TABLE>
* Estimated, pursuant to Rule 457(h), solely for the purpose of calculating
the registration fee as follows: the filing fee for the 30,000 shares not
presently under option was calculated by reference to the average of the
bid and ask price as reported on the NASD's "Bulletin Board" as of
September 11, 1997 which was $1.44 per share, for a total maximum offering
price for such 30,000 shares of $43,200.
** In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following materials previously filed by Lark Technologies, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated herein by reference:
1. Annual Report on Form 10-KSB for the fiscal year ended December 31,
1996; and
2. Quarterly Reports on Form 10-QSB for the quarter ended March 31,
1997 and for the quarter ended June 30, 1997.
All documents filed by the Company with the Commission pursuant to Sections
13(a) or 15(d) of the Exchange Act prior to the filing of a post-effective
amendment to this Registration Statement on Form S-8 (the "Registration
Statement"), which indicates that all the securities registered hereunder have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated herein by reference 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 herein by reference 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 that is or is
deemed to be incorporated herein by reference, 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 THE SECURITIES.
At September 15, 1997, the authorized capital stock of Lark Technologies,
Inc. consisted of 8,000,000 shares of Common Stock of which 3,326,900 were
issued and outstanding. Of the Common Stock, 320,968 shares are reserved for
issuance upon the exercise of options.
Each share of Common Stock entitles the holder to an equal and ratable
right to receive dividends paid from the Company's assets legally available
therefor when, as and if declared by the Board of Directors. In the event of
dissolution, liquidation or winding up of the Company, the holders of Common
Stock are entitled to share equally or ratably in the assets available for
distribution after payments are made to the Company's creditors. The holders of
Common Stock have no preemptive rights or other rights to subscribe for
securities of the Company. Each share of Common Stock entitles the holder
thereof to one vote in elections for directors and all other matters submitted
to a vote of shareholders. The holders of Common Stock have no right to cumulate
their votes in the election of directors.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is required to indemnify each present and future member of the
Board of Directors against, and each member of the Board of Directors shall be
entitled without further act on the member's part to indemnity from the Company
for, all expenses (including the amount of judgments and the amount of approved
settlements made with a view to the curtailment of costs of litigation, other
than amounts paid to the Company itself) reasonably incurred by him in
connection with or arising out of any action, suit or proceeding in which he may
be involved by reason of his being or having been a member of the Board of
Directors, whether or not he continues to be such member of the Board of
Directors at the time of incurring such expenses; provided, however, that such
indemnity shall not include any expenses incurred by any such member of the
Board of Directors (i) in respect of matters as to which he shall be finally
adjudged in any such action, suit or proceeding to have been guilty of gross
negligence or willful misconduct in the performance of his duty as such member
of the Board of Directors; or (ii) in respect of any matter in which any
settlement is effected, to an amount in excess of the amount approved by the
Company on the advice of its legal counsel; and provided further, that no right
of indemnification under the provisions set forth herein shall be available to
or enforceable by any such member of the Board of Directors unless, within sixty
(60) days after institution of any such action, suit or proceeding, the Director
shall have offered the Company, in writing, the opportunity to handle and defend
same at its own expense. The foregoing right of indemnification shall inure to
the benefit of the heirs, executors or administrators of each such member of the
Board of Directors and shall be in addition to all other rights to which such
member of the Board of Directors may be entitled as a matter of law, contract,
or otherwise.
The Company's Certificate of Incorporation and Bylaws incorporate
substantially the provisions of the Delaware General Corporation Law providing
for indemnification of directors and officers of the Company against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with any proceeding arising by reason of the fact that such person
is or was an officer or director of the Company or is or was serving at the
request of the Company as a director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise.
In the case of a derivative suit, an officer, employee or agent of the
Company shall be indemnified by the Company for reasonable expenses, including
attorneys' fees, if such person has acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Company, except that no indemnification shall be made in the case of a
derivative suit in respect of any claim as to which an officer, employee or
agent has been adjudged to be liable to the Company unless that person is fairly
and reasonably entitled to indemnity for proper expenses. Expenses incurred in
defending a civil or criminal action, suit or proceeding shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the director, officer,
employee or agent to repay such amount if it shall ultimately be determined that
he is not entitled to be indemnified by the Company.
The Company has purchased liability insurance policies covering its
directors and officers to provide protection where the Company cannot legally
indemnify a director or officer based on an alleged breach of fiduciary duty or
other wrongful act.
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ITEM 8. EXHIBITS.
4.1 The Company's 1997 Nonqualified Stock Option Plan for Non-Employee
Directors.
4.2 Form of the Company's Stock Option Agreement (Initial Grant).
4.3 Form of the Company's Stock Option Agreement (Annual Grant).
4.4 The Certificate of Incorporation and Bylaws further defining the rights of
the security holders are incorporated by reference to Exhibits 3.1 and 3.2
of Form SB-2, Registration Number 333-04688, filed June 6, 1996.
5 The Opinion of Counsel regarding the legality of the securities being
registered.
23.1 The Consent of Bracewell & Patterson, L.L.P. is included in the opinion as
filed at Exhibit 5 of this Registration Statement.
23.2 The Consent of Ernst & Young LLP, independent public auditors.
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 (the "Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any additional or changed information on the plan of
distribution;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply if the
registration statement is on Form S-8 and 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 Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the 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.
(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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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 or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on September 15, 1997.
LARK TECHNOLOGIES, INC.
(Registrant)
By /s/ VINCENT P. KAZMER
Vincent P. Kazmer
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment has been signed by the following persons in
the capacities indicated on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ VINCENT P. KAZMER President, Chief Executive September 15, 1997
Vincent P. Kazmer Officer and Director
/s/ DOUGLAS B. WHEELER Vice President, Finance September 15, 1997
Douglas B. Wheeler
/s/ STEPHEN J. BANKS Director September 15, 1997
Stephen J. Banks
/s/ George M. Britton Director September 15, 1997
George M. Britton
/s/ DAVID A. LAWSON Director September 15, 1997
David A. Lawson
/s/ FRANK VAZQUEZ Director September 15, 1997
Frank Vazquez
(Constituting a majority of the Board of Directors)
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ------ ----------------------
4.1 The Company's 1997 Nonqualified Stock Option Plan for
Non-Employee Directors.
4.2 Form of the Company's Stock Option Agreement (Initial Grant).
4.3 Form of the Company's Stock Option Agreement (Annual Grant).
4.4 The Certificate of Incorporation and Bylaws further defining
the rights of the security holders are incorporated by
reference to Exhibits 3.1 and 3.2 of Form SB-2, Registration
Number 333-04688, filed June 6, 1996.
5 Opinion of Bracewell & Patterson, L.L.P. regarding the
legality of the shares of Common Stock covered by this
Registration Statement.
23.1 Consent of Bracewell & Patterson, L.L.P. (included in their
opinion as filed at Exhibit 5 of this Registration Statement).
23.2 The Consent of Ernst & Young LLP, independent public auditors.
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EXHIBIT 4.1
LARK TECHNOLOGIES, INC.
1997 NONQUALIFIED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
SECTION 1. PURPOSE. The purpose of this Lark Technologies, Inc. 1997
Nonqualified Stock Option Plan for Non-Employee Directors ("Plan") is to attract
and retain the services of experienced and knowledgeable non-employee directors
for Lark Technologies, Inc. (the "Company") and provide such non-employee
directors an opportunity for ownership of common stock, $.001 par value ("Common
Stock"), of the Company. Options to be granted under this Plan will be
nonqualified options which are not intended to qualify as Incentive Stock
Options pursuant to Section 422 of the Internal Revenue Code of 1986, as amended
("Code").
SECTION 2. ADMINISTRATION OF THE PLAN. The Plan shall be administered by
the Board of Directors of the Company ("Board"). Subject to the terms of the
Plan, the Board shall have the power to interpret the provisions and supervise
the administration of the Plan. All decisions made by the Board pursuant to the
provisions of the Plan shall be made by a majority of its members at a duly held
regular or special meeting or by written consent in lieu of any such meeting. A
majority of the directors in office shall constitute a quorum and all decisions
made by the Board pursuant to the provisions of the Plan shall be made by a
majority of the directors present at any duly held regular or special meeting at
which a quorum is present (unless the concurrence of a greater proportion is
required by law or by the articles or bylaws of the Company) or by the written
consent of a majority of the directors in lieu of any such meeting. All expenses
and liabilities incurred by the Board in the administration of this Plan shall
be borne by the Company. The Board may employ attorneys, consultants,
accountants or other persons to assist the Board in the carrying out of its
duties hereunder.
SECTION 3. STOCK RESERVED. Subject to adjustment as provided in Section
6(g) hereof, the aggregate number of shares of Common Stock that may be optioned
under this Plan is 30,000. The shares subject to this Plan shall consist of
authorized but unissued shares of Common Stock or previously issued shares of
Common Stock reacquired and held by the Company, and such number of shares shall
be and is hereby reserved for sale for such purpose. Any of such shares which
may remain unsold and which are not subject to outstanding options at the
termination of this Plan shall cease to be reserved for the purpose of this
Plan, but until termination of this Plan or the termination of the last of the
options granted under this Plan, whichever last occurs, the Company shall at all
times reserve a sufficient number of shares to meet the requirements of this
Plan. Should any option expire or be canceled prior to its exercise in full, the
shares theretofore subject to such option may again be made subject to an option
under this Plan.
SECTION 4. GRANT OF OPTIONS. Each director of the Company who is not
otherwise an employee of the Company or any of the Company's subsidiaries (as
defined in Section 424(f) of the Internal Revenue Code of 1986) (hereinafter
referred to as an "Eligible Director", which term shall include any transferee
permitted pursuant to paragraph 5(e) below) shall be granted one option to
acquire 2,500 shares of Common Stock ("Initial Option"), in the case of an
Eligible Director serving on the Board on the date of adoption of the Plan by
the Board, on such date of adoption and in all
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other cases on the date of such director's first election to the Board. An
additional option to acquire 1,000 shares of Common Stock ("Subsequent Option")
shall thereafter automatically be granted to each Eligible Director on the date
of each annual meeting of shareholders at which he or she is reelected to serve
an additional term as a director of the Company after such meeting. The term
"Date of Grant" means (i) in the case of an Initial Option granted to an
Eligible Director serving on the Board on the date of the adoption of the Plan
by the Board, on such date of adoption and in all other cases on the date on
which the Eligible Director is first elected to the Board; and (ii) in the case
of a Subsequent Option, the date of each annual meeting at which an Eligible
Director who has theretofore received an Initial Option is reelected to serve an
additional term as a director of the Company.
SECTION 5. TERMS AND CONDITIONS. Each option granted under this Plan shall
be evidenced by an agreement, in a form approved by the Board, which shall be
subject to the following express terms and conditions and to such other terms
and conditions as the Board may deem appropriate.
(a) OPTION PERIOD. Each option granted under this Plan shall provide that
it shall terminate and be of no force or effect with respect to any shares not
previously purchased under such option by an Eligible Director upon the
expiration of ten years from the Date of Grant of the option. An option may be
exercised in whole or in part at any time prior to its termination, subject the
limitations in this paragraph. An Initial Option shall not be exercisable for
more than a percentage of the aggregate number of shares offered by such option
determined by the number of full years of service by the Eligible Director as a
director of the Company from the Date of Grant of such option, in accordance
with the following schedule:
Number of Percentage of
Full Years Shares Purchasable
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1 25%
2 50%
3 75%
4 100%
A Subsequent Option shall become exercisable upon the completion by the
Eligible Director of one year of service as a director from the Date of Grant of
such option. Notwithstanding anything herein to the contrary, upon a Change of
Control of the Company, each option held by an Eligible Director shall become
fully exercisable.
(b) EXERCISE PRICE. The exercise price of each share of Common Stock
subject to an Initial Option or Subsequent Option shall be the fair market value
of a share of Common Stock on the Date of Grant of the Initial Option or
Subsequent Option. For all purposes under this Plan, the fair market value of a
share of Common Stock means, as of any specified date, (i) if the Common Stock
is listed on a national stock exchange, the mean of the high and low sales
prices of the Common Stock, reported on the stock exchange composite tape on
that date, or if no prices are reported on that date, on the last preceding date
on which such prices of Common Stock are so reported; or, (ii) in the event the
Common Stock is not traded on a national stock exchange, the fair market value
of a share of Common Stock determined by the Board in such reasonable manner as
it deems appropriate.
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(c) PROCEDURE FOR EXERCISE. Options shall be exercised by the delivery by
the Eligible Director of written notice to the Secretary of the Company setting
forth the number of shares of Common Stock with respect to which the option is
being exercised. The notice shall be accom panied by, at the election of the
Eligible Director, (i) cash, cashier's check, bank draft, or postal or express
money order payable to the order of the Company, (ii) certificates representing
shares of Common Stock theretofore owned by the Eligible Director duly endorsed
for transfer to the Company, (iii) an election by the Eligible Director to have
the Company withhold the number of shares of Common Stock the fair market value
of which is equal to the aggregate exercise price of the shares of Common Stock
issuable upon exercise of the option, or (iv) any combination of the preceding,
equal in value to the full amount of the exercise price. Notice may also be
delivered by telecopy provided that the exercise price of such shares is
received by the Company via wire transfer on the same day the telecopy
transmission is received by the Company. The notice shall specify the address to
which the certificates for such shares are to be mailed. An option to purchase
shares of Common Stock in accordance with this Plan shall be deemed to have been
exercised immediately prior to the close of business on the date (i) written
notice of such exercise and (ii) payment in full of the exercise price for the
number of share for which options are being exercised, are both received by the
Company and the Eligible Director shall be treated for all purposes as the
record holder of such shares of Common Stock as of such date.
As promptly as practicable after receipt of such written notice and
payment, the Company shall deliver to the Eligible Director certificates for the
number of shares with respect to which such option has been so exercised, issued
in the Eligible Director's name or such other name as Eligible Director directs;
provided, however, that such delivery shall be deemed effected for all purposes
when a stock transfer agent of the Company shall have deposited such
certificates in the United States mail, addressed to the Eligible Director at
the address specified pursuant to this paragraph 5(c).
(d) TERMINATION OF SERVICE. If an Eligible Director to whom an option is
granted ceases to serve on the Board for any reason, with or without cause,
other than death or retirement for age or disability, any option which is
exercisable on the date of such cessation of service on the Board may be
exercised (to the extent the Eligible Director would have been entitled to do so
at the date of such cessation of service) during a thirty (30) day period after
such date, but in no event may the option be exercised after its expiration
under the terms of the option agreement.
If an Eligible Director to whom an option is granted ceases to serve on
the Board by reason of retirement for age under the then established rules of
the Company, any option which is exercisable on the date of such cessation of
service on the Board shall expire on the earlier of (i) one day less than three
months after the Eligible Director's retirement for age, or (ii) the date the
option otherwise expires under the terms of the option agreement. Prior to the
expiration of the option, the Eligible Director shall have the right to exercise
the option to the extent to which he was entitled to exercise the option at the
date of such cessation of service.
If an Eligible Director to whom an option is granted ceases to serve on
the Board by reason of retirement for disability under the then established
rules of the Company, any option which is exercisable on the date of such
cessation of service on the Board shall expire on the earlier of (i) one day
less than one year after the Eligible Director's retirement for disability, or
(ii) the date the option otherwise expires under the terms of the option
agreement. Prior to the expiration of the option, the
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Eligible Director shall have the right to exercise the option to the extent to
which he was entitled to exercise the option at the date of such cessation of
service.
If an Eligible Director to whom an option is granted dies (i) while
serving on the Board or (ii) during the period after the Eligible Director has
ceased serving on the Board by reason of retirement for age or disability and
prior to the expiration of the option, any option which is exercisable on the
date of death shall expire on the earlier of (i) one year after the Eligible
Director's death, or (ii) the date the options otherwise expire under the terms
of the option agreement. After the death of the Eligible Director, his
executors, administrators or any persons to whom his option may be transferred
by will or by the laws of descent and distribution shall have the right, at any
time prior to the expiration of the option, to exercise the option to the extent
to which the Eligible Director was entitled to exercise it immediately prior to
the Eligible Director's death.
(e) TRANSFERABILITY. An option granted pursuant to this Plan shall not be
assignable or otherwise transferable by an Eligible Director otherwise than by
an Eligible Director's will or by the laws of descent and distribution. During
the lifetime of an Eligible Director, an option shall be exercisable only by
such Eligible Director or the Eligible Director's legal representative. Any heir
or legatee of the Eligible Director shall take rights granted herein and in the
option agreement subject to the terms and conditions hereof and thereof. No such
transfer of any option to heirs or legatees of the Eligible Director shall be
effective to bind the Company unless the Company shall have been furnished with
written notice thereof and a copy of such evidence as the Board may deem
necessary to establish the validity of the transfer and the acceptance by the
transferee or transferees of the terms and conditions hereof.
(f) NO RIGHTS AS SHAREHOLDER. No Eligible Director shall have any rights
as a shareholder with respect to shares covered by an option until the option is
exercised by written notice and accompanied by payment as provided in paragraph
5(c) above.
(g) EXTRAORDINARY CORPORATE TRANSACTIONS. The existence of outstanding
options shall not affect in any way the right or power of the Company or its
shareholders to make or authorize any or all adjustments, recapitalizations,
reorganizations, exchanges, or other changes in the Company's capital structure
or its business, or any merger or consolidation of the Company, or any issuance
of Common Stock or other securities or subscription rights thereto, or any
issuance of bonds, debentures, preferred or prior preference stock ahead of or
affecting the Common Stock or the rights thereof, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise. If the Company recapitalizes or otherwise
changes its capital structure, or merges, consolidates, sells all of its assets
or dissolves (each of the foregoing a "Fundamental Change"), then thereafter
upon any exercise of an option theretofore granted the Eligible Director, the
Eligible Director shall be entitled to purchase under such option, in lieu of
the number of shares of Common Stock as to which option shall then be
exercisable, the number and class of shares of stock and securities to which the
Eligible Director would have been entitled pursuant to the terms of the
Fundamental Change if, immediately prior to such Fundamental Change, the
Eligible Director had been the holder of record of the number of shares of
Common Stock as to which such option is then exercisable.
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(h) CHANGES IN CAPITAL STRUCTURE. If the outstanding shares of Common
Stock or other securities of the Company, or both, for which the option is then
exercisable shall at any time be changed or exchanged by declaration of a stock
dividend, stock split, combination of shares or recapitalization, the number and
kind of shares of Common Stock or other securities which are subject to this
Plan or subject to any options theretofore granted, and the exercise prices,
shall be appropriately and equitably adjusted so as to maintain the
proportionate number of shares or other securities without changing the
aggregate exercise price.
(i) CHANGE OF CONTROL. For all purposes under this Plan, the term "Change
of Control" means the occurrence of any of the following events: (i) the Company
shall not be the surviving entity in any merger, consolidation or other
reorganization (or survives only as a subsidiary of an entity other than a
previously wholly-owned subsidiary of the Company), (ii) the Company sells,
leases or exchanges all or substantially all of its assets to any other person
or entity (other than a wholly-owned subsidiary of the Company), (iii) the
Company is to be dissolved and liquidated, (iv) any person or entity, including
a "group" as contemplated by Section 13(d)(3) of the 1934 Act, acquires or gains
ownership or control (including, without limitation, power to vote) of more than
50% of the outstanding shares of the Company's voting stock (based upon voting
power), or (v) as a result of or in connection with a contested election of
directors, the persons who were directors of the Company before such election
shall cease to constitute a majority of the Board.
SECTION 6. AMENDMENTS OR TERMINATION. The Board may amend, alter or
discontinue this Plan; PROVIDED, HOWEVER, no amendment, alteration or
termination shall be made which would impair the rights of any Eligible
Director, without the Eligible Director's consent, under any option theretofore
granted.
SECTION 7. COMPLIANCE WITH OTHER LAWS AND REGULATIONS. This Plan, the
grant and exercise of options thereunder, and the obligation of the Company to
sell and deliver shares under such options, shall be subject to all applicable
federal and state laws, rules and regulations and to such approvals by any
governmental or regulatory agency as may be required. The Company shall not be
required to issue or deliver any certificates for shares of Common Stock prior
to the com pletion of any registration or qualification of such shares under any
federal or state law or issuance of any ruling or regulation of any government
body which the Company shall, in its sole discretion, determine to be necessary
or advisable.
SECTION 8. PURCHASE FOR INVESTMENT. Unless the options and shares of
Common Stock covered by this Plan have been registered under the Securities Act
of 1933, as amended, or the Company has determined that such registration is
unnecessary, each person exercising an option under this Plan may be required by
the Company to give a representation in writing that such person is acquiring
such shares for his or her own account for investment and not with a view to, or
for sale in connection with, the distribution of any part thereof.
SECTION 9. TAXES.
(a) The Company may make such provisions as it may deem appropriate for
the withholding of any taxes which it determines is required in connection with
any options granted under this Plan.
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(b) Any Eligible Director may pay all or any portion of the taxes required
to be withheld by the Company or paid by the Eligible Director in connection
with the exercise of an option by electing to have the Company withhold shares
of Common Stock, or by delivering previously owned shares of Common Stock,
having a fair market value, determined in accordance with paragraph 5(b), equal
to the amount required to be withheld or paid. An Eligible Director must make
the foregoing election on or before the date that the amount of tax to be
withheld is determined. All such elections are irrevocable and subject to
disapproval by the Board.
SECTION 10. LIABILITY OF COMPANY FOR NON-ISSUANCE OF SHARES AND TAX
CONSEQUENCES. The Company shall not be liable to an Eligible Director or other
persons as to:
(a) The non-issuance or sale of shares as to which the Company has been
unable to obtain from any regulatory body having jurisdiction the authority
deemed by the Company's counsel to be necessary to the lawful issuance and sale
of any shares hereunder; and
(b) Any tax consequence expected, but not realized, by any Eligible
Director or other person due to the exercise of any option granted hereunder.
SECTION 11. EFFECTIVENESS AND EXPIRATION OF PLAN. This Plan shall be
effective on the date of adoption by the Board. This Plan shall expire ten years
after the date the Board adopts this Plan and thereafter no option shall be
granted pursuant to this Plan.
SECTION 12. NON-EXCLUSIVITY OF THIS PLAN. The adoption by the Board shall
not be construed as creating any limitations on the power of the Board to adopt
such other incentive arrangements as it may deem desirable, including without
limitation, the granting of restricted stock or stock options otherwise than
under this Plan, and such arrangements may be either generally applicable or
applicable only in specific cases.
SECTION 13. GOVERNING LAW. This Plan and any agreements hereunder shall be
interpreted and construed in accordance with the laws of the State of Delaware
and applicable federal law.
IN WITNESS WHEREOF, and as conclusive evidence of the adoption of the
foregoing by the Board, Lark Technologies, Inc. has caused this document to be
duly executed in its name and behalf by its proper officer thereunto duly
authorized as of the date of the adoption of the Plan by the Board, being
_______________, 1997.
LARK TECHNOLOGIES, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
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EXHIBIT 4.2
LARK TECHNOLOGIES, INC.
1997 NONQUALIFIED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
NONQUALIFIED STOCK OPTION AGREEMENT
(INITIAL GRANT)
This Nonqualified Stock Option Agreement ("Option Agreement") is between
Lark Technologies, Inc. (the "Company"), and ___________________________
("Optionee"), who agree as follows:
Section 1. INTRODUCTION. The Company has heretofore adopted the Lark
Technologies, Inc. 1997 Nonqualified Stock Option Plan for Non-Employee
Directors (the "Plan") for the purpose of attracting and retaining the services
of experienced and knowledgeable non-employee directors for the Company and
providing such non-employee directors an opportunity for ownership of common
stock, $.001 par value ("Common Stock") of the Company. The Company, acting
through its Board of Directors (the "Board"), has determined that its interests
will be advanced by the issuance to Optionee of a nonqualified stock option
under the Plan.
Section 2. OPTION. Subject to the terms and conditions contained herein,
the Company hereby irrevocably grants to Optionee the right and option
("Option") to purchase from the Company 2,500 shares of Common Stock, at a price
of $______ per share.
Section 3. OPTION PERIOD. The Option herein granted may be exercised by
Optionee in whole or in part at any time during a ten year period (the "Option
Period") beginning on _______________ (the "Date of Grant"), subject to the
limitation that said Option shall not be exercisable for more than a percentage
of the aggregate number of shares offered by this Option determined by the
number of full years of Optionee's service as a director of the Company from the
Date of Grant, to the date of such exercise, in accordance with the following
schedule:
Number of Percentage of
Full Years Shares Purchasable
---------- ------------------
1 25%
2 50%
3 75%
4 100%
Notwithstanding anything herein to the contrary, upon a Change of Control
(as defined in the Plan) of the Company, this Option shall become fully
exercisable.
Section 4. PROCEDURE FOR EXERCISE. The Option herein granted may be
exercised by the delivery by Optionee of written notice to the Secretary of the
Company setting forth the number of shares of Common Stock with respect to which
the Option is being exercised. The notice shall be accompanied by, at the
election of the Optionee, (i) cash, cashier's check, bank draft, or postal or
express money order payable to the order of the Company, (ii) certificates
representing shares of
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<PAGE>
Common Stock theretofore owned by Optionee duly endorsed for transfer to the
Company, (iii) an election by Optionee to have the Company withhold the number
of shares of Common Stock the fair market value of which is equal to the
aggregate exercise price of the shares of Common Stock issuable upon exercise of
the Option, or (iv) any combination of the preceding, equal in value to the
aggregate exercise price. Notice may also be delivered by telecopy provided that
the exercise price of such shares is received by the Company via wire transfer
on the same day the telecopy transmission is received by the Company. The notice
shall specify the address to which the certifi cates for such shares are to be
mailed. An option to purchase shares of Common Stock in accordance with this
Plan, shall be deemed to have been exercised immediately prior to the close of
business on the date (i) written notice of such exercise and (ii) payment in
full of the exercise price for the number of share for which Options are being
exercised, are both received by the Company and Optionee shall be treated for
all purposes as the record holder of such shares of Common Stock as of such
date.
As promptly as practicable after receipt of such written notice and
payment, the Company shall deliver to Optionee certificates for the number of
shares with respect to which such Option has been so exercised, issued in
Optionee's name or such other name as Optionee directs; provided, however, that
such delivery shall be deemed effected for all purposes when a stock transfer
agent of the Company shall have deposited such certificates in the United States
mail, addressed to Optionee at the address specified pursuant to this Section 4.
Section 5. TERMINATION OF SERVICE. If Optionee ceases to serve on the
Board for any reason, with or without cause, other than death or retirement for
age or disability, the Option may be exercised (to the extent Optionee would
have been entitled to do so at the date of such cessation of service) during a
thirty (30) day period after such date, but in no event may the Option be
exercised after the expiration of the Option Period.
If Optionee ceases to serve on the Board by reason of retirement for age
under the then established rules of the Company, the Option shall expire on the
earlier of (i) the last day of the Option Period, or (ii) one day less than
three months after Optionee's retirement for age. Prior to the expiration of the
Option, Optionee shall have the right to exercise the Option to the extent to
which he was entitled to exercise the Option at the date of such cessation of
service.
If Optionee ceases to serve on the Board by reason of retirement for
disability under the then established rules of the Company, the Option shall
expire on the earlier of (i) the last day of the Option Period, or (ii) one day
less than one year after Optionee's retirement for disability. Prior to the
expiration of the Option, Optionee shall have the right to exercise the Option
to the extent to which he was entitled to exercise the Option at the date of
such cessation of service.
If Optionee dies (i) while serving on the Board or (ii) during the period
after Optionee has ceased serving on the Board by reason of retirement for age
or disability and prior to the expiration of the Option, the Option shall expire
on the earlier of (i) the last day of the Option Period, or (ii) one year after
Optionee's death. After the death of Optionee, his executors, administrators or
any persons to whom his Option may be transferred by will or by the laws of
descent and distribution shall have the right, at any time prior to the
expiration of the Option under this Section, to exercise the Option to the
extent to which Optionee was entitled to exercise it immediately prior to
Optionee's death.
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<PAGE>
Section 6. TRANSFERABILITY. This Option shall not be transferable by
Optionee otherwise than by Optionee's will or by the laws of descent and
distribution. During the lifetime of Optionee, the Option shall be exercisable
only by Optionee or his authorized legal representative. Any heir or legatee of
Optionee shall take rights herein granted subject to the terms and conditions
hereof. No such transfer of this Option Agreement to heirs or legatees of
Optionee shall be effective to bind the Company unless the Company shall have
been furnished with written notice thereof and a copy of such evidence as the
Board may deem necessary to establish the validity of the transfer and the
acceptance by the transferee or transferees of the terms and conditions hereof.
Section 7. NO RIGHTS AS SHAREHOLDER. Optionee shall have no rights as a
shareholder with respect to any shares of Common Stock covered by this Option
Agreement until the Option is exercised by written notice and accompanied by
payment as provided in Section 4 of this Option Agreement.
Section 8. EXTRAORDINARY CORPORATE TRANSACTIONS. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issuance of Common Stock or subscription rights thereto, or any issuance of
bonds, debentures, preferred or prior preference stock ahead of or affecting the
Common Stock or the rights thereof, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceedings, whether of a similar character or
otherwise. If the Company goes through a "Fundamental Change" (as defined in
subparagraph 5(g) of the Plan), the Options granted hereunder shall be governed
by subparagraph 5(g) of the Plan.
Section 9. CHANGES IN CAPITAL STRUCTURE. If the outstanding shares of
Common Stock or other securities of the Company, or both, for which the Option
is then exercisable shall at any time be changed or exchanged by declaration of
a stock dividend, stock split, combination of shares, or recapitalization, the
number and kind of shares of Common Stock or other securities subject to the
Plan or subject to the Option and the exercise price, shall be appropriately and
equitably adjusted so as to maintain the proportionate number of shares or other
securities without changing the aggre gate exercise price.
Section 10. COMPLIANCE WITH LAWS. Notwithstanding any of the other
provisions hereof, Optionee agrees that he or she will not exercise the Option
granted hereby, and that the Company will not be obligated to issue any shares
pursuant to this Option Agreement, if the exercise of the Option or the issuance
of such shares of Common Stock would constitute a violation by Optionee or by
the Company of any provision of any law or regulation of any governmental
authority.
Section 11. WITHHOLDING OF TAX. To the extent that the exercise of this
Option or the disposition of shares of Common Stock acquired by exercise of this
Option results in compensation income to Optionee for federal or state income
tax purposes, payment of the withholding tax shall be made in accordance with
Section 9 of the Plan.
Section 12. NO RIGHT TO DIRECTORSHIP. Optionee shall be considered to be
in service on the Board so long as he or she remains a director of the Company.
Any questions as to whether and when there has been a termination of such
service on the Board and the cause of such termination
-3-
<PAGE>
shall be determined by the Board, and its determination shall be final. Nothing
contained herein shall be construed as conferring upon Optionee the right to
continue service on the Board.
Section 13. RESOLUTION OF DISPUTES. As a condition of the granting of the
Option hereby, Optionee, and Optionee's heirs, personal representatives and
successors agree that any dispute or disagreement which may arise hereunder
shall be determined by the Board in its sole discretion and judgment, and that
any such determination and any interpretation by the Board of the terms of this
Option Agreement shall be final and shall be binding and conclusive, for all
purposes, upon the Company, Optionee, and Optionee's heirs, personal
representatives and successors.
Section 14. LEGENDS ON CERTIFICATE. The certificates representing the
shares of Common Stock purchased by exercise of the Option will be stamped or
otherwise imprinted with legends in such form as the Company or its counsel may
require with respect to any applicable restrictions on sale or transfer and the
stock transfer records of the Company will reflect stop-transfer instructions
with respect to such shares.
Section 15. NOTICES. Every notice hereunder shall be in writing and shall
be given by registered or certified mail. All notices of the exercise of any
Option hereunder shall be directed to Lark Technologies, Inc., 9495 Katy
Freeway, Suite 465, Houston, Texas 77024, Attention: Secretary. Any notice given
by the Company to Optionee directed to Optionee at the address on file with the
Company shall be effective to bind Optionee and any other person who shall
acquire rights hereunder. The Company shall be under no obligation whatsoever to
advise Optionee of the existence, maturity or termination of any of Optionee's
rights hereunder and Optionee shall be deemed to have familiarized himself or
herself with all matters contained herein and in the Plan which may affect any
of Optionee's rights or privileges hereunder.
Section 16. CONSTRUCTION AND INTERPRETATION. Whenever the term "Optionee"
is used herein under circumstances applicable to any other person or persons to
whom this award, in accordance with the provisions of Section 7 hereof, may be
transferred, the word "Optionee" shall be deemed to include such person or
persons.
Section 17. AGREEMENT SUBJECT TO PLAN. This Option Agreement is subject to
the Plan. The terms and provisions of the Plan (including any subsequent
amendments thereto) are hereby incorporated herein by reference thereto. In the
event of a conflict between any term or provision contained herein and a term or
provision of the Plan, the applicable terms and provisions of the Plan will
govern and prevail. All definitions of words and terms contained in the Plan
shall be applicable to this Option Agreement.
Section 18. BINDING EFFECT. This Option Agreement shall be binding upon
and inure to the benefit of any successors to the Company and all persons
lawfully claiming under Optionee as provided herein.
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<PAGE>
IN WITNESS WHEREOF, this Nonqualified Stock Option Agreement has been
executed as of the ____ day of ___________, 19____.
LARK TECHNOLOGIES, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
OPTIONEE
__________________________________
-5-
EXHIBIT 4.3
LARK TECHNOLOGIES, INC.
1997 NONQUALIFIED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
NONQUALIFIED STOCK OPTION AGREEMENT
(ANNUAL GRANT)
This Nonqualified Stock Option Agreement ("Option Agreement") is between
Lark Technologies, Inc. (the "Company"), and ___________________________
("Optionee"), who agree as follows:
Section 1. INTRODUCTION. The Company has heretofore adopted the Lark
Technologies, Inc. 1997 Nonqualified Stock Option Plan for Non-Employee
Directors (the "Plan") for the purpose of attracting and retaining the services
of experienced and knowledgeable non-employee directors for the Company and
providing such non-employee directors an opportunity for ownership of common
stock, $.001 par value ("Common Stock") of the Company. The Company, acting
through its Board of Directors (the "Board"), has determined that its interests
will be advanced by the issuance to Optionee of a nonqualified stock option
under the Plan.
Section 2. OPTION. Subject to the terms and conditions contained herein,
the Company hereby irrevocably grants to Optionee the right and option
("Option") to purchase from the Company 1,000 shares of Common Stock, at a price
of $______ per share.
Section 3. OPTION PERIOD. The Option herein granted may be exercised by
Optionee in whole or in part at any time during a ten year period (the "Option
Period") beginning on _______________ (the "Date of Grant"), subject to the
limitation that said Option shall not be exercisable until Optionee has
completed one full year of service as a director of the Company from the Date of
Grant. Notwithstanding anything herein to the contrary, upon a Change of Control
(as defined in the Plan) of the Company, this Option shall become fully
exercisable.
Section 4. PROCEDURE FOR EXERCISE. The Option herein granted may be
exercised by the delivery by Optionee of written notice to the Secretary of the
Company setting forth the number of shares of Common Stock with respect to which
the Option is being exercised. The notice shall be accompanied by, at the
election of the Optionee, (i) cash, cashier's check, bank draft, or postal or
express money order payable to the order of the Company, (ii) certificates
representing shares of Common Stock theretofore owned by Optionee duly endorsed
for transfer to the Company, (iii) an election by Optionee to have the Company
withhold the number of shares of Common Stock the fair market value of which is
equal to the aggregate exercise price of the shares of Common Stock issuable
upon exercise of the Option, or (iv) any combination of the preceding, equal in
value to the aggregate exercise price. Notice may also be delivered by telecopy
provided that the exercise price of such shares is received by the Company via
wire transfer on the same day the telecopy transmission is received by the
Company. The notice shall specify the address to which the certificates for such
shares are to be mailed. An option to purchase shares of Common Stock in
accordance with this Plan, shall be deemed to have been exercised immediately
prior to the close of business on the date (i) written notice of such exercise
and (ii) payment in full of the exercise price
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<PAGE>
for the number of share for which Options are being exercised, are both received
by the Company and Optionee shall be treated for all purposes as the record
holder of such shares of Common Stock as of such date.
As promptly as practicable after receipt of such written notice and
payment, the Company shall deliver to Optionee certificates for the number of
shares with respect to which such Option has been so exercised, issued in
Optionee's name or such other name as Optionee directs; provided, however, that
such delivery shall be deemed effected for all purposes when a stock transfer
agent of the Company shall have deposited such certificates in the United States
mail, addressed to Optionee at the address specified pursuant to this Section 4.
Section 5. TERMINATION OF SERVICE. If Optionee ceases to serve on the
Board for any reason, with or without cause, other than death or retirement for
age or disability, the Option may be exercised (to the extent Optionee would
have been entitled to do so at the date of such cessation of service) during a
thirty (30) day period after such date, but in no event may the Option be
exercised after the expiration of the Option Period.
If Optionee ceases to serve on the Board by reason of retirement for age
under the then established rules of the Company, the Option shall expire on the
earlier of (i) the last day of the Option Period, or (ii) one day less than
three months after Optionee's retirement for age. Prior to the expiration of the
Option, Optionee shall have the right to exercise the Option to the extent to
which he was entitled to exercise the Option at the date of such cessation of
service.
If Optionee ceases to serve on the Board by reason of retirement for
disability under the then established rules of the Company, the Option shall
expire on the earlier of (i) the last day of the Option Period, or (ii) one day
less than one year after Optionee's retirement for disability. Prior to the
expiration of the Option, Optionee shall have the right to exercise the Option
to the extent to which he was entitled to exercise the Option at the date of
such cessation of service.
If Optionee dies (i) while serving on the Board or (ii) during the period
after Optionee has ceased serving on the Board by reason of retirement for age
or disability and prior to the expiration of the Option, the Option shall expire
on the earlier of (i) the last day of the Option Period, or (ii) one year after
Optionee's death. After the death of Optionee, his executors, administrators or
any persons to whom his Option may be transferred by will or by the laws of
descent and distribution shall have the right, at any time prior to the
expiration of the Option under this Section, to exercise the Option to the
extent to which Optionee was entitled to exercise it immediately prior to
Optionee's death.
Section 6. TRANSFERABILITY. This Option shall not be transferable by
Optionee otherwise than by Optionee's will or by the laws of descent and
distribution. During the lifetime of Optionee, the Option shall be exercisable
only by Optionee or his authorized legal representative. Any heir or legatee of
Optionee shall take rights herein granted subject to the terms and conditions
hereof. No such transfer of this Option Agreement to heirs or legatees of
Optionee shall be effective to bind the Company unless the Company shall have
been furnished with written notice thereof and a copy of such evidence as the
Board may deem necessary to establish the validity of the transfer and the
acceptance by the transferee or transferees of the terms and conditions hereof.
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<PAGE>
Section 7. NO RIGHTS AS SHAREHOLDER. Optionee shall have no rights as a
shareholder with respect to any shares of Common Stock covered by this Option
Agreement until the Option is exercised by written notice and accompanied by
payment as provided in Section 4 of this Option Agreement.
Section 8. EXTRAORDINARY CORPORATE TRANSACTIONS. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issuance of Common Stock or subscription rights thereto, or any issuance of
bonds, debentures, preferred or prior preference stock ahead of or affecting the
Common Stock or the rights thereof, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceedings, whether of a similar character or
otherwise. If the Company goes through a "Fundamental Change" (as defined in
subparagraph 5(g) of the Plan), the Options granted hereunder shall be governed
by subparagraph 5(g) of the Plan.
Section 9. CHANGES IN CAPITAL STRUCTURE. If the outstanding shares of
Common Stock or other securities of the Company, or both, for which the Option
is then exercisable shall at any time be changed or exchanged by declaration of
a stock dividend, stock split, combination of shares, or recapitalization, the
number and kind of shares of Common Stock or other securities subject to the
Plan or subject to the Option and the exercise price, shall be appropriately and
equitably adjusted so as to maintain the proportionate number of shares or other
securities without changing the aggre gate exercise price.
Section 10. COMPLIANCE WITH LAWS. Notwithstanding any of the other
provisions hereof, Optionee agrees that he or she will not exercise the Option
granted hereby, and that the Company will not be obligated to issue any shares
pursuant to this Option Agreement, if the exercise of the Option or the issuance
of such shares of Common Stock would constitute a violation by Optionee or by
the Company of any provision of any law or regulation of any governmental
authority.
Section 11. WITHHOLDING OF TAX. To the extent that the exercise of this
Option or the disposition of shares of Common Stock acquired by exercise of this
Option results in compensation income to Optionee for federal or state income
tax purposes, payment of the withholding tax shall be made in accordance with
Section 9 of the Plan.
Section 12. NO RIGHT TO DIRECTORSHIP. Optionee shall be considered to be
in service on the Board so long as he or she remains a director of the Company.
Any questions as to whether and when there has been a termination of such
service on the Board and the cause of such termination shall be determined by
the Board, and its determination shall be final. Nothing contained herein shall
be construed as conferring upon Optionee the right to continue service on the
Board.
Section 13. RESOLUTION OF DISPUTES. As a condition of the granting of the
Option hereby, Optionee, and Optionee's heirs, personal representatives and
successors agree that any dispute or disagreement which may arise hereunder
shall be determined by the Board in its sole discretion and judgment, and that
any such determination and any interpretation by the Board of the terms of this
Option Agreement shall be final and shall be binding and conclusive, for all
purposes, upon the Company, Optionee, and Optionee's heirs, personal
representatives and successors.
-3-
<PAGE>
Section 14. LEGENDS ON CERTIFICATE. The certificates representing the
shares of Common Stock purchased by exercise of the Option will be stamped or
otherwise imprinted with legends in such form as the Company or its counsel may
require with respect to any applicable restrictions on sale or transfer and the
stock transfer records of the Company will reflect stop-transfer instructions
with respect to such shares.
Section 15. NOTICES. Every notice hereunder shall be in writing and shall
be given by registered or certified mail. All notices of the exercise of any
Option hereunder shall be directed to Lark Technologies, Inc., 9495 Katy
Freeway, Suite 465, Houston, Texas 77024, Attention: Secretary. Any notice given
by the Company to Optionee directed to Optionee at the address on file with the
Company shall be effective to bind Optionee and any other person who shall
acquire rights hereunder. The Company shall be under no obligation whatsoever to
advise Optionee of the existence, maturity or termination of any of Optionee's
rights hereunder and Optionee shall be deemed to have familiarized himself or
herself with all matters contained herein and in the Plan which may affect any
of Optionee's rights or privileges hereunder.
Section 16. CONSTRUCTION AND INTERPRETATION. Whenever the term "Optionee"
is used herein under circumstances applicable to any other person or persons to
whom this award, in accordance with the provisions of Section 7 hereof, may be
transferred, the word "Optionee" shall be deemed to include such person or
persons.
Section 17. AGREEMENT SUBJECT TO PLAN. This Option Agreement is subject to
the Plan. The terms and provisions of the Plan (including any subsequent
amendments thereto) are hereby incorporated herein by reference thereto. In the
event of a conflict between any term or provision contained herein and a term or
provision of the Plan, the applicable terms and provisions of the Plan will
govern and prevail. All definitions of words and terms contained in the Plan
shall be applicable to this Option Agreement.
Section 18. BINDING EFFECT. This Option Agreement shall be binding upon
and inure to the benefit of any successors to the Company and all persons
lawfully claiming under Optionee as provided herein.
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<PAGE>
IN WITNESS WHEREOF, this Nonqualified Stock Option Agreement has been
executed as of the ____ day of ___________, 19____.
LARK TECHNOLOGIES, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
OPTIONEE
__________________________________
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EXHIBIT 5
September 15, 1997
Lark Technologies, Inc.
9545 Katy Freeway, Suite 465
Houston, Texas 77023
Ladies and Gentlemen:
We have represented Lark Technologies, Inc. (the "Company") in connection with
its Registration Statement on Form S-8 (the "Registration Statement"), relating
to the offering of 30,000 shares (the "Shares") of the Company's common stock,
par value $0.001 per share (the "Common Stock"), pursuant to the Lark
Technolgies, Inc. 1997 Nonqualified Stock Option Plan for Non-Employee Directors
(the "Plan").
In connection therewith, we have examined, among other things, the Certificate
of Incorporation and the By-laws of the Company, the corporate proceedings taken
to date with respect to the authorization of the Plan, the authorization and
offer of shares of Common Stock pursuant thereto and such other documents and
records as we have deemed necessary and relevant for purposes hereof. In
addition, we have relied on certificates and telegrams of public officials as to
certain matters of fact relating to the opinion contained herein and have made
such investigations of law as we have deemed necessary and relevant as a basis
hereof. We have assumed the genuineness of all signatures, the authenticity of
all documents and records submitted to us as originals, the conformity to
authentic original documents and records of all documents and records submitted
to us as copies, and the truthfulness of all statements of fact contained
therein. Moreover, we have assumed the due authorization, execution and delivery
of all instruments and documents by all parties thereto other than the Company,
and the legality, validity, binding effect on and enforceability against all
such parties of such instruments and documents.
Based upon the foregoing and subject to the limitations, qualifications and
assumptions set forth herein, and having due regard for such legal
considerations as we deem relevant, we are of the opinion that the issuance of
the Shares pursuant to the Plan has been duly authorized, and (subject to the
Registration Statement becoming effective and compliance with any applicable
Blue Sky laws) upon the issuance and delivery of the Shares in accordance with
the terms of the Plan against receipt by the Company of the purchase price
thereof, the Shares will be validly issued, fully paid, and nonassessable.
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<PAGE>
The opinion set forth above is limited in all respects to the laws of the State
of Texas, the General Corporation Law of the State of Delaware and the relevant
law of the United States of America, and we render no opinion with respect to
the law of any other jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. By giving such consent we do not admit that we are
experts with respect to any part of the Registration Statement, including this
exhibit, within the meaning of the term "expert" as used in the Securities Act
of 1933, as amended, or the rules and regulations of the Securities and Exchange
Commission issued thereunder.
Very truly yours,
Bracewell & Patterson, L.L.P.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Lark Technologies, Inc. 1997 Nonqualified Stock
Option Plan for Non-Employee Directors of our report dated March 4, 1997, except
for note 7, as to which the date is March 26, 1997, with respect to the
financial statements of Lark Technologies, Inc. included in its Annual Report
(Form 10-KSB) for the year ended December 31, 1996, filed with the Securities
and Exchange Commission.
ERNST & YOUNG LLP
Houston, Texas
September 15, 1997
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