UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
Under the Securities Act of 1933
SYNERTECK INCORPORATED
(Exact Name of Registrant as Specified in Its Charter)
Delaware 20-0929024
------------------------------------ ------------------------------------
(State or other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
11585 South State, Suite 102, Draper, Utah 84020
----------------------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Synerteck Incorporated 2005 Stock Incentive Plan
-----------------------------------------------------------------------------
(Full Title of the Plan)
Clayton Barlow, 11585 South State, Suite 102, Draper, Utah 84020
-----------------------------------------------------------------------------
(Name and Address of Agent For Service)
(801) 816-2505
-----------------------------------------------------------------------------
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
-------------------------------------------------------------------------------------------------------------------
Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered (1) Per Share(2) Offering Price(3) Fee(4)
- ------------------------ --------------------- ----------------------- ---------------------- ----------------------
Common Stock 2,900,000 $0.235 $681,500 $62.70
- ------------------------ --------------------- ----------------------- ---------------------- ----------------------
(1) Represents the aggregate number of shares of Common Stock, par value $0.001
per share, issuable pursuant to the Registrant's 2005 Stock Incentive Plan
("Plan"). This Registration Statement also covers such additional securities as
may be become issuable to prevent dilution from stock splits, stock dividends,
and similar events as provided under the Stock Incentive Plan.
(2) The maximum offering price per share of the securities is calculated based
on Rule 457(c). The maximum offering price is $0.235 based upon the average of
the bid and asked price on November 22, 2005.
(3) The maximum aggregate offering price equal to 2,900,000 shares multiplied by
the offering price of $0.235, equaling $681,500.
(4) The amount of the Registration Fee equals $62,70. This amount is arrived at
pursuant to the fee schedules set forth in Section 6 of the Securities Act of
1933.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The document(s) containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1). Such
documents need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in the
registration statement in Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
ITEM 1. PLAN INFORMATION.
(A) GENERAL PLAN INFORMATION
The Registrant (sometimes referred to hereinafter as the "Company") has
adopted the Synerteck Incorporated 2005 Stock Incentive Plan ( the "Plan") which
provides for the issuance of up to seven million (7,000,000) shares of common
stock to employees, non-employee directors, and other service providers. The
Plan was adopted on August 4, 2005 to provide incentives to various personnel
assisting the Company. Of the number of shares issuable under the Plan,
2,900,000 shares issued under the Plan are being registered pursuant to this
registration statement.
The Company's board of directors is the administrator of the Plan and has
the authority to amend the Plan, but any such amendment will not affect the
rights of holders of awards already issued under the Plan. Chene Gardner,
Kenneth I. Denos, and Clayton Barlow are the members of the Company's board of
directors and are currently serving a term expiring at the next annual meeting
of the Company's shareholders or upon their earlier death, incapacitation,
removal, or resignation.
The participants in the Plan are sometimes referred to hereinafter as the
"Participants."
The Plan is not subject to any of the provisions of the Employee Retirement
Income Security Act of 1974.
The name, address, and telephone number of the Registrant are as set forth
on the facing page of this Registration Statement. Additional information about
the Plan may be obtained from the Registrant by any Participant.
(B) SECURITIES TO BE OFFERED
1
(1) The Registrant intends to issue shares of its Common Stock, par
value $0.001 per share, the amounts of which are set forth above
in subsection (a) of this Item 1.
(2) Description of Securities.
(i) Description of Common Stock. Each share of Common Stock is
entitled to one vote. The holders of Common Stock are
entitled to receive dividends on a pro rata basis if and
when declared by the Company's Board of Directors. The
Company has never paid a dividend and does not anticipate
doing so in the near future. Each share of Common Stock is
entitled to share ratably in any assets available for
distribution to holders of equity securities upon the
liquidation of the Company.
(ii) Description of Preferred Stock. Each outstanding share of
Preferred Stock is entitled to convert into one share of
Common Stock. Consent of a majority of the holders of
Preferred Stock is required for the Company to file a
registration statement on Form S-8 or to execute a stock
dividend, stock split, recapitalization, or share
consolidation.
(iii)Certain Charter and Bylaw Provisions. Certain provisions of
the Company's Certificate of Incorporation ("Certificate")
and the Bylaws adopted therefrom may have the effect of
preventing, discouraging, or delaying a change in the
control of the Company and may maintain the incumbency of
the Board of Directors and management. The Certificate and
Bylaws provide that the Board of Directors shall have
authority to fix the number of directors and to fill
vacancies of the Board of Directors as such vacancies occur.
The Certificate and bylaws also provide for the Board of
Directors to be classified into three classes of directors
serving staggered three-year terms. As a result, one-third
of the Board of Directors may be elected each year.
Moreover, the Certificate provides that these provisions of
the Certificate relating to number vacancies, and
classification of the Board of Directors may only be amended
by a vote of at least 66?% of the shareholders. Finally, the
Bylaws provide that special meetings of the stockholders may
only be called by the President of the Company or pursuant
to a resolution adopted by a majority of the Board of
Directors.
(C) EMPLOYEES WHO MAY PARTICIPATE IN THE PLANS
All employees, directors, and various other service providers to the
Company are eligible to participate in the Plan.
2
(D) PURCHASE OF SECURITIES PURSUANT TO THE PLAN AND PAYMENT FOR SECURITIES
OFFERED
(1) The Participants in the Plan will be issued up to 7,000,000
shares of the Company's common stock or options to acquire shares
of the Company's Common stock as determined by the Company's
board of directors, provided however, 2,900,000 shares issued
under the Plan are being registered hereby.
(2) The Participants may not assign their interest in the Plan but
may assign, subject to applicable securities laws, shares of
common stock issued under the Plan or exercised common stock
purchase options issued pursuant to the Plan.
(3) The Participants in the Plans have provided or will continue to
provide services to the Registrant.
(4) No contributions are required by any Participant under the Plan.
(5) No contributions by the Registrant other than the issuance of
shares or options to acquire shares is applicable.
(6) Reports to the Participants as to the amount and status of any
Participant's account under the Plans will not be made.
(7) The shares issuable pursuant to the Plan will be newly issued
shares of the Registrant.
(E) RESALE RESTRICTIONS
There are no resale restrictions on the securities offered.
(F) TAX EFFECTS ON PLAN PARTICIPATION
With respect to awards of common stock, the Participants will recognize
ordinary income equal to the aggregate fair market value of the shares issued to
them as of the date of issuance. With respect to awards of common stock purchase
options awarded under the Plan that are not qualified under Section 422A of the
Internal Revenue Code, Participants will recognize ordinary income equal to the
difference between the exercise price and the fair market value of the shares
acquired thereby on the date of exercise. With respect to common stock purchase
options awarded under the Plan that are qualified under Section 422A of the
Internal Revenue Code, Participants will not recognize income upon the exercise
of such options and, depending on such additional requirements of Section 422A,
may recognize capital gains (or losses) upon the subsequent sale of the shares
received upon exercise of the option, based upon the difference between the
sales price of the shares and the exercise price of the option.
3
(G) INVESTMENT OF FUNDS
Not applicable.
(H) WITHDRAWAL FROM PLAN; ASSIGNMENT OF INTEREST
(1) Withdrawal from Plan- Not applicable.
(2) Assignment: The terms governing assignment of Participant
interests in the Plan is summarized in Sections (d)(2) of this
Item 1.
(I) FORFEITURES AND PENALTIES
Participants who receive Common Stock purchase options may forfeit any
unvested options upon termination of service with the Company. With respect to
vested common stock purchase options, Participants may forfeit all options
(whether vested or unvested) upon 12 months of cessation of service due to
death, retirement or disability, and upon 3 months for any other reason.
(J) CHARGES AND DEDUCTIONS, AND LIENS THEREFOR
The Registrant may make appropriate deductions from any award issued under
the Plan to satisfy federal, state, and local employment-related withholding
requirements.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Registrant shall provide to the Participant, without charge, upon oral or
written request, the documents incorporated by reference in Item 3 of Part II of
this Registration Statement. The Registrant shall also provide to the
Participant, without charge, upon oral or written request, all of the documents
required to be delivered to the Participant pursuant to Rule 428(b). Any and all
such requests shall be directed to the Registrant at the address set forth on
the cover page hereof. Its telephone number is (801) 816-2505.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in the
Registration Statement:
4
(a) the Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 2004, as filed with the SEC; and
(b) all other reports filed with the SEC pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
since December 31, 2004.
In addition to the above, all documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act,
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 in the
Registration Statement and to be a part thereof from the date of filing of such
documents.
Any statement contained herein or in a document incorporated or deemed
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5. INTERESTS OF NAMES EXPERTS AND COUNSEL
Kenneth I. Denos serves as a director and as General Counsel to the
Registrant and currently holds 208,983 shares of Common Stock of the Company,
and is expected to receive awards under the Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
DELAWARE GENERAL CORPORATE LAW
Section 102(b)(7) of the Delaware General Corporation Law ("DGCL") allows a
corporation to eliminate or limit the personal liability of a director to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty except for:(i) any breach of the duty of loyalty to the corporation or its
stockholders; (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) declaration of
unlawful dividends or unlawful stock repurchases or redemptions; (iv) any
transaction from which the director derived an improper benefit; or (v) any act
or omission occurring prior to the date any such provision eliminating or
limiting such liability became effective.
Section 145(a) of the DGCL provides that a corporation may indemnify an
officer or director who is or is threatened to be made a party to a proceeding
(other than an action by or in
5
the right of the corporation) by reason of the fact that such officer or
director is or was (i) serving as an officer, director, employee, or agent of
the corporation, or (ii) served at the request of such corporation as an
officer, director, employee, or agent of another corporation or other enterprise
or entity. Such indemnification may only be made if the officer's or director's
conduct was in good faith and in a manner such person reasonably believed to be
in or not opposed to the corporation's best interests, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. Section 145(c) of the DGCL provides that a corporation
shall indemnify an officer or director for his reasonable expenses in connection
with the defense of any proceeding if the officer or director has been
successful, on the merits or otherwise. Section 145(e) provides that a
corporation may advance expenses to an officer or director who is made a party
to a criminal or civil proceeding before a final disposition is made, if the
corporation receives an undertaking by or on behalf of such officer or director
to repay any amounts advanced if it is determined that such officer or director
was not entitled to indemnification. Section 145(j) provides that the
indemnification provisions of Section 145 continue for a person who has ceased
to be an officer or director, and inures to the benefit of the heirs, executors,
and administrators of such person. Section 145(g) provides that a corporation
may purchase and maintain insurance on behalf of officers or directors, among
others, against liabilities imposed upon them by reason of actions in their
capacities as such, and whether or not the corporation would have the power to
indemnify them against such liability under Section 145.
CERTIFICATE OF INCORPORATION
Article VII of the Certificate of Incorporation provides that the liability
of directors to the Company or its stockholders is eliminated to the fullest
extent permitted under the DGCL, as described in the preceding section.
BYLAWS
Article VI, Section 6.1(a) of the Bylaws provides that an officer or
director who was or is made party to, or is threatened to be made a party to, or
is involved in any proceeding by reason of the fact that he or she is or was an
officer or director, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, or as its
representative in another enterprise shall be indemnified and held harmless to
the fullest extent permitted and subject to the standards of conduct,
procedures, and other requirements under Delaware law. Article, VI, Section
6.1(a) further provides that the Company may purchase and maintain insurance on
behalf of an officer or director against any liability arising out of their
status as such, whether or not the corporation would have the power to indemnify
such officer or director.
Article VI, Section 6.1(b) of the Bylaws provides that the right of an
officer or director to indemnification shall continue beyond termination as such
an inures to the benefit of the heirs and personal representatives of such
officer or director.
6
Article VI, Section 6.1(d) of the Bylaws provides that the Company shall,
from time to time, reimburse or advance to an officer or director the funds
necessary for payment of expenses incurred in connection with defending any
proceeding for which he or she is indemnified by the corporation, in advance of
the final disposition of such proceeding, provided that, if then required by the
DGCL, such advancements may only be paid upon the receipt by the corporation of
an undertaking by or on behalf of such officer or director to repay any such
amount so advanced if it is ultimately determined by a final and unappealable
judicial decision that the officer or director is not entitled to be indemnified
for such expenses.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS.
The following documents are filed as exhibits to this Form S-8.
Exhibit Number Description
- -------------- -----------
5.1 Opinion of Kenneth I. Denos regarding the legality of the securities being
registered hereunder.
23.1 Consent of Kenneth I. Denos (contained in Exhibit 5.1 above).
23.2 Consent of Independent Auditors, Bowhuis, Morrill, and Company, LLC.
99.1 Synerteck Incorporated 2005 Stock Incentive Plan.
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes to do the following:
(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
7
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers, and
controlling persons of the registrant pursuant to any 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 a 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.
8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all 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 Draper, State of Utah, on November 22, 2005. This
Form S-8 has been signed below on behalf of the Company and by the following
persons, which include the principal executive officer, principal financial
officer, its controller or principal accounting officer, and at least a majority
of the board of directors, in the following capacities and on the dates
indicated:
SYNERTECK INCORPORATED
By: /s/ CHENE GARDNER
Chene Gardner
Chief Financial Officer
(principal financial and accounting officer)
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on the 22nd of November, 2005.
Signature Title
/s/ CLAYTON BARLOW Chief Executive Officer and Director
- ----------------------------
Clayton Barlow
/s/ CHENE GARDNER Chief Financial Officer, Principal Accounting
- ---------------------------- Officer, and Director
Chene Gardner
9
Pursuant to the requirements of the Securities Act of 1933, the following
administrators of the Plan have duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the city
of Draper, State of Utah, on the 22nd of November, 2005.
SYNERTECK 2005 STOCK INCENTIVE PLAN
Signature Title
/s/ CLAYTON BARLOW Plan Administrator
- ------------------
Clayton Barlow
/s/ CHENE GARDNER Plan Administrator
- -----------------
Chene Gardner
/s/ KENNETH DENOS Plan Administrator
- -----------------
Kenneth Denos
10
Index and Description of Exhibits.
Exhibit Number Description
- -------------- -----------
5.1 Opinion of Kenneth I. Denos regarding the legality of the securities being
registered hereunder.
23.1 Consent of Kenneth I. Denos (contained in Exhibit 5.1 above).
23.2 Consent of Independent Auditors, Bowhuis, Morrill, and Company, LLC.
99.1 Synerteck Incorporated 2005 Stock Incentive Plan