As filed with the Securities and Exchange Commission on July 7, 2000
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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SURREY, INC.
(Exact name of issuer as specified in its charter)
Texas 74-2138564
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
13110 Trails End Road Leander, Texas 78641
(Address of principal executive offices, including Zip Code)
1997 LONG-TERM INCENTIVE PLAN
1997 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
2000 LONG-TERM INCENTIVE PLAN
(Full title of the plans)
Martin van der Hagen Copy to:
President Elizabeth H. Cobb, Esq.
Surrey, Inc. Mackall, Crounse & Moore, PLC
13110 Trails End Road 1400 AT&T Tower
Leander, Texas 78641 901 Marquette Avenue
(Name and address of agent for service) Minneapolis, Minnesota 55402-2859
(612) 305-1400
(512) 267-7172
(Telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale:
From time to time after the effective date of this registration statement.
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share(2) Price(2) Fee
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Common Stock, 1,450,000 shares $0.75 $1,087,500.00 $288.00
without par value
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(1) Includes 350,000 shares under the 1997 Long-Term Incentive Plan; 100,000
shares under the 1997 Non-Employee Directors Stock Option Plan; and
1,000,000 shares under the 2000 Long-Term Incentive Plan.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h), based upon the quotations for such Common
Stock on July 5, 2000, as reported on the Nasdaq SmallCap Market.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Documents 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 Securities and Exchange Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424. Such documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933.
In addition, any "reoffer prospectus" required to be used in connection
with the resale of "control securities" will be prepared by the registrant in
accordance with the requirements of Part I of Form S-3 and will be filed with
the Securities and Exchange Commission in a post-effective amendment to this
registration statement on Form S-8.
Item 1. Plan Information.
Item 2. Registrant Information and Employee Plan Annual Information.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by reference:
a. Annual Report on Form 10-KSB of Surrey, Inc. (the "Company") for the fiscal
year ended December 31, 1999, filed with the Securities and Exchange Commission
pursuant to Sections 13 or 15(d) of the Securities Exchange Act of 1934
(Commission No. 001-23407).
b. All other reports filed by the Company with the Securities and Exchange
Commission since December 31, 1999, pursuant to Sections 13 or 15(d) of the
Exchange Act.
c. Description of the Company Common Stock, contained in the Company's
Registration Statement on Form SB-2 (Registration No. 333-35757), filed with the
Securities and Exchange Commission.
d. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the date of this registration statement
and prior to the filing of a
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post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all such securities then remaining to be sold.
Item 4. Description of Securities.
The common stock, without par value (the "Common Stock"), of the
Company offered pursuant to this registration statement is registered under
Section 12(g) of the Securities Exchange Act of 1934. The description of the
Company Common Stock is incorporated by reference pursuant to Item 3.c. above.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article 2.02-1 of the Texas Business Corporation Act provides that the
Company may indemnify a person who was, is, or is threatened to be made a named
defendant or respondent in a proceeding because the person is or was a director
or officer only if it is determined in accordance with such article that the
person: (1) conducted himself in good faith; (2) reasonably believed: (a) in the
case of conduct in his official capacity, that his conduct was in the
corporation's best interests; and (b) in all other cases, that his conduct was
at least not opposed to the corporation's best interests; and (3) in the case of
any criminal proceeding, has no reasonable cause to believe his conduct was
unlawful.
Except to the extent permitted by such article, a director or officer
may not be indemnified under this article in respect of a proceeding: (1) in
which the person is found liable on the basis that personal benefit was
improperly received by him, whether or not the benefit resulted from an action
taken in the person's official capacity; or (2) in which the person is found
liable to the corporation.
A person may be indemnified under such article against judgments,
penalties (including excise and similar taxes), fines, settlements, and
reasonable expenses actually incurred by the person in connection with the
proceeding; but if the person is found liable to the corporation or is found
liable on the basis that personal benefit was improperly received by the person,
the indemnification (1) is limited to reasonable expenses actually incurred by
the person in connection with the proceeding and (2) shall not be made in
respect of any proceeding in which the person shall have been found liable for
willful or intentional misconduct in the performance of his duty to the
corporation.
A determination of indemnification under such article must be made: (1)
by a majority vote of a quorum consisting of directors who at the time of the
vote are not named defendants or
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respondents in the proceeding; (2) if such a quorum cannot be obtained, by a
majority vote of a committee of the board of directors, designated to act in the
matter by a majority vote of all directors, consisting solely of two or more
directors who at the time of the vote are not named defendants or respondents in
the proceeding; (3) by special legal counsel selected by the board of directors
or a committee of the board by vote as set forth above in (1) or (2) or, if such
a quorum cannot be obtained and such a committee cannot be established, by a
majority vote of all directors; and (4) by the shareholders in a vote that
excludes the shares held by directors who are named defendants or respondents in
the proceeding.
Authorization of indemnification and determination as to reasonableness
of expenses must be made in the same manner as the determination that
indemnification is permissible, except that if the determination that
indemnification is permissible is made by special legal counsel, authorization
of indemnification and determination as to reasonableness of expenses must be
made in the manner specified by Subsection (3) above for the selection of
special legal counsel. A provision contained in the articles of incorporation,
the bylaws, a resolution of shareholders or directors, or an agreement that
makes mandatory the indemnification permitted under this article shall be deemed
to constitute authorization of indemnification in the manner required by this
section even though such provision may not have been adopted or authorized in
the same manner as the determination that indemnification is permissible.
A corporation shall indemnify a director or officer against reasonable
expenses incurred by him in connection with a proceeding in which he is a named
defendant or respondent because he is or was a director or officer if he has
been wholly successful, on the merits or otherwise, in the defense of the
proceeding.
A corporation may purchase and maintain insurance or another
arrangement on behalf of any person who is or was a director, officer, employee,
or agent of the corporation or who is or was serving at the request of the
corporation as a director, officer, partner, venturer, proprietor, trustee,
employee, agent, or similar functionary of another foreign or domestic
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan, or other enterprise, against any liability asserted against him
and incurred by him in such a capacity or arising out of his status as such a
person, whether or not the corporation would have the power to indemnify him
against that liability under this article. Without limiting the power of the
corporation to procure or maintain any kind of insurance or other arrangement, a
corporation may, for the benefit of persons indemnified by the corporation, (1)
create a trust fund; (2) establish any form of self-insurance; (3) secure its
indemnity obligation by grant of a security interest or other lien on the assets
of the corporation; or (4) establish a letter of credit, guaranty, or surety
arrangements. The insurance or other arrangement may be procured, maintained, or
established within the corporation or with any insurer or other person deemed
appropriate by the board of directors regardless of whether all or part of the
stock or other securities of the insurer or other person are owned in whole or
part by the corporation. In the absence of fraud, the judgment of the board of
directors as to the terms and conditions of the insurance or other arrangement
and the identity of the insurer or other persons participating in an arrangement
shall be conclusive and the insurance or arrangement shall not be voidable and
shall not subject the directors approving the insurance or arrangement to
liability, on any ground, regardless of whether directors participating in the
approval are beneficiaries of the insurance or arrangement.
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The articles of incorporation of a corporation may restrict the
circumstances under which the corporation is required or permitted to indemnify
a person under such article.
Provisions regarding indemnification of officers and directors of the
Company are contained in Article XI of the Company's Articles of Incorporation,
as amended (Exhibit 3.1 to the registration statement on Form SB-2 filed with
the SEC on November 16, 1997), and Article VIII of the Company's Amended and
Restated Bylaws (Exhibit 3.2 to the registration statement on Form SB-2 filed
with the SEC on November 16, 1997).
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
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5.1 Opinion of Mackall, Crounse & Moore as to the legality of Common Stock
of the Company.
10.1 Surrey, Inc. 1997 Long-Term Incentive Plan.
10.2 Surrey, Inc. Amended and Restated 1997 Non-Employee Directors Stock
Option Plan.
10.3 Surrey, Inc. 2000 Long-Term Incentive Plan, as amended.
23.1 Consent of Grant Thornton, LLP
23.2 Consent of Ernst & Young, LLP
23.3 Consent of Mackall, Crounse & Moore [included in its opinion filed as
Exhibit 5.1].
24 Powers of Attorney [included as part of signature page].
Item 9. Undertakings.
(a) Rule 415 Offering.
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:
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(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or 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
Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by Reference.
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 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.
(h) Statement Required in Connection with Filing of Registration Statement on
Form S-8.
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
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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.
[remainder of page intentionally blank]
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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 the Registrant has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Leander, State of Texas on July 5,
2000.
SURREY, INC.
By /s/ John B. van der Hagen
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John B. van der Hagen
Chairman and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
each of John van der Hagen and Martin van der Hagen such person's true and
lawful attorneys-in-fact and agents with full power of substitution and
resubstitution for such persons and in such persons' name, place and stead, in
any and all capacities, to sign any or 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 full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as such persons might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their 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 as of the dates indicated.
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Signature Title Date
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/s/ John B. van der Hagen Chairman of the Board of July 5, 2000
- ------------------------------- Directors and Chief Executive
John B. van der Hagen Officer
(Principal Executive Officer)
/s/ Martin van der Hagen President and Director June 23, 2000
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Martin van der Hagen
/s/ Mary van der Hagen Secretary and Director July 5, 2000
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Mary van der Hagen
/s/ Bruce A. Masucci Director June 30, 2000
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Bruce A. Masucci
/s/ G. Thomas MacIntosh II Director June 30, 2000
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G. Thomas MacIntosh II
/s/ Mark J. van der Hagen Vice President - Finance and July 5, 2000
- ------------------------------- Treasurer
Mark J. van der Hagen (Principal Accounting Officer)
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