As filed with the Securities and Exchange Commission on September 21, 2000
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.)
9441 W. SAM HOUSTON PARKWAY SOUTH, SUITE 103, HOUSTON, TEXAS 77099
(Address of Principal Executive Offices) (Zip Code)
LARK TECHNOLOGIES, INC. 2000 STOCK OPTION PLAN
(Full title of the plan)
MR. DOUGLAS B. WHEELER
PRESIDENT
LARK TECHNOLOGIES, INC.
9441 W. SAM HOUSTON PARKWAY SOUTH, SUITE 103
HOUSTON, TEXAS 77099
(Name and address of agent for service)
(713) 779-3663
(Telephone number, including area code, of agent for service)
COPY TO:
BOYER, EWING & HARRIS INCORPORATED
NINE GREENWAY PLAZA, SUITE 3100
HOUSTON, TEXAS 77046
ATTN: RITA J. LEADER
Calculation of Registration Fee
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Proposed
maximum Proposed
Title of offering maximum Amount of
securities Amount to be price per aggregate registration
to be registered registered unit* offering price* fee*
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Common Stock,
$.001 par value 1,000,000 shares $2.625 $2,625,000 $525.00
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* Estimated, pursuant to Rule 457(h), solely for the purpose of calculating
the registration fee, based upon the average of the bid and ask price as
reported on the NASD's "Bulletin Board" as of September 13, 2000 which was
$2.625 per share.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
This registration statement incorporates herein by reference the following
documents which have been filed with the Securities and Exchange Commission (or
are being filed concurrently herewith) by Lark Technologies, Inc., a Delaware
corporation (the "Company"):
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1999.
(b) The Company's Quarterly Report on Form 10-QSB for the period ended
March 31, 2000.
(c) The Company's Quarterly Report on Form 10-QSB for the period ended
June 30, 2000.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this registration
statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
At September 20, 2000, the authorized capital stock of the Company
consisted of 8,000,000 shares of Common Stock of which 3,455,279 were issued and
outstanding. Of the Common Stock, 1,000,000 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
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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.
As permitted by Section 102 of the Delaware General Corporation Law (the
"DGCL"), the Company's Certificate of Incorporation, as amended, contains
provisions eliminating a director's personal liability for monetary damages to
the Company and its stockholders arising from a breach of a director's fiduciary
duty except for liability (a) for any breach of the director's duty of loyalty
to the Company or its stockholders, (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (c) under
Section 174 of the DGCL, or (d) for any transaction from which the director
derived an improper personal benefit.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NUMBER PAGE
AND DESCRIPTION NUMBER
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<S> <C>
(4) Instruments defining the rights of security holders, including indentures
4.1 Lark Technologies, Inc. 2000 Stock Option Plan. 8
4.2 Lark Sequencing Technologies, Inc. 1990 Stock Option Plan
sponsored by Lark Technologies, Inc. Incorporated by reference
from the Company's Registration Statement on Form S-4 dated
August 14, 1995, Commission File No. 33-90424. (Exhibit 10.1
to such Registration Statement on Form S-4).
(5) Opinion re legality
5.1 Opinion of Boyer, Ewing & Harris Incorporated. 22
(15) Letter re unaudited interim financial information*
(23) Consents of experts and counsel
23.1 Consent of Ernst & Young LLP. 24
23.2 Consent of Boyer, Ewing & Harris Incorporated (included in Exhibit 5.1).
(24) Power of attorney (included on page 7 of the Registration Statement)
(99) Additional exhibits*
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* Not Applicable
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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 this registration statement to include
any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(2) that, for 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; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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 therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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 Houston, State of Texas, on September 21, 2000.
Lark Technologies, Inc.
By: /s/ DOUGLAS B. WHEELER
Douglas B. Wheeler, President
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David A. Lawson and Douglas B. Wheeler, and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for his in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits hereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ GEORGE M. BRITTON Director and Co-Chairman September 21, 2000
George M. Britton of the Board
/s/ DAVID A. LAWSON Director and Co-Chairman September 21, 2000
David A. Lawson of the Board
/s/ DOUGLAS B. WHEELER Director, President September 21, 2000
Douglas B. Wheeler (Principal Executive
Officer) and Chief
Financial Officer
(Principal Financial and
Accounting Officer)
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