As filed with the Securities and Exchange Commission on December 13, 2002
Registration No. 333-________
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE DWYER GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 73-0941783
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1010 N. UNIVERSITY PARKS DRIVE
WACO, TEXAS 76707
(Address of Principal Executive Offices)
THE DWYER GROUP, INC.
1997 STOCK OPTION PLAN
(Full title of the plan)
Thomas J. Buckley Copy to: Michael H. Newman, Esq.
Vice President, Gardere Wynne Sewell LLP
Chief Financial Officer and Treasurer 1601 Elm Street
1010 N. University Parks Drive Suite 3000
Waco, Texas 76707 Dallas, Texas 75201
(254) 745-2400 (214) 999-4716
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
<Table>
<Caption>
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) FEE (2)
- -------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.10 par value 937,500 shares $2.69 $2,519,123.75 $231.76
=========================================================================================================================
</Table>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), this registration statement also covers such
additional shares of Common Stock as may become issuable by reason of the
operation of the anti-dilution provisions of The Dwyer Group, Inc. 1997
Stock Option Plan or other laws.
(2) Calculated pursuant to Rule 457(h) under the Securities Act, solely for
the purpose of computing the registration fee, based on (a) outstanding
options to purchase 846,000 shares of Common Stock at exercise prices
that range from $1.81 per share to $4.20 per share and (b) 91,500 shares
of Common Stock subject to options not yet granted at $4.00 per share,
representing the average of the high and low prices reported for the
Common Stock on December 6, 2002 on the Nasdaq National Market System.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information required in Part I of Form
S-8 will be sent or given to participants as specified by Rule 428(b)(1) under
the Securities Act. These documents and the documents incorporated herein by
reference pursuant to Item 3 of Part II of this registration statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by The Dwyer Group, Inc. (the "Registrant")
with the Securities and Exchange Commission (the "SEC") are incorporated by
reference in this registration statement:
(1) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 2001, filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934 (the "Exchange Act") (File No.
0-15227).
(2) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 2001.
(3) The description of the Registrant's Common Stock contained in the
Registrant's registration statement on Form SB-2, as filed with
the SEC on July 19, 1994, including any amendments or reports
filed for the purpose of updating such description.
In addition, all reports and other 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 this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of the
State of Delaware (the "DGCL") empowers a corporation to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
II-2
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
made to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145 further provides that to the extent a present or former
director or officer of a corporation has been successful on the merits or
otherwise in the defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith; the
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; the indemnification
provided for by Section 145 shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of such person's heirs,
executors and administrators; and empowers the corporation to purchase and
maintain insurance on behalf of any person who is or was a director or officer
of the corporation against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether or not
the corporation would have the power to indemnify him against such liabilities
under Section 145.
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director: (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any
transaction from which the director derived an improper personal benefit.
Article Seventh of the Registrant's Certificate of Incorporation
provides for mandatory indemnification of its directors, officers, employees and
other agents to the maximum extent permitted by the DGCL.
Article Tenth of the Registrant's Certificate of Incorporation states
that: "To the fullest extent permitted by Delaware General Corporation Law as
the same exists or may hereafter be amended, a director of this Corporation
shall not be liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director."
Article VI of the Registrant's bylaws provides for mandatory
indemnification of its directors, officers, employees and other agents to the
maximum extent permitted by the DGCL.
Reference is made to Item 9 for our undertakings with respect to
indemnification for liabilities arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 The Dwyer Group, Inc. 1997 Stock Option Plan and Form of
Employee Stock Option Agreement (incorporated by reference to
Exhibit 10.50 to the Registrant's Form 10-KSB for the fiscal
year ended December 31, 1997)
4.2* Amendment No. 1 to the 1997 Stock Option Plan
4.3* Amendment No. 2 to the 1997 Stock Option Plan
5.1* Opinion of Gardere Wynne Sewell LLP
II-3
23.1* Consent of BDO Seidman, LLP
23.2* Consent of Gardere Wynne Sewell LLP (included as part of Exhibit
5.1)
24.1* Power of Attorney (set forth on the signature pages of this
Registration Statement)
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* filed herewith
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this
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 this registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in this registration statement or any
material change to such information in this
registration statement;
provided, however, that the undertakings set forth in paragraphs (1)(i)
and (1)(ii) above do not apply if the information required to be
included in a post-effective amendment by these 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
this registration statement.
(2) That, for the purpose of determining any liability under the
Securities 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.
The Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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 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 SEC such indemnification is against
public policy as expressed in the Securities 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 Securities 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, 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 Waco, State of Texas, on December 13, 2002.
THE DWYER GROUP, INC.
By: /s/ Thomas J. Buckley
------------------------------------------
Thomas J. Buckley, Vice President, Chief
Financial Officer and Treasurer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
in this registration statement in any capacity hereby constitutes and appoints
Dina Dwyer-Owens and Thomas J. Buckley and each of them (with full power in each
of them to act alone), his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and 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 the SEC, with all
exhibits thereto, and other documents in connection therewith, granting unto
said attorneys-in-fact and agents, full power and authority to do and perform
each and every act and thing requisite or desirable.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities indicated
on October 28, 2002.
<Table>
<Caption>
Name Title
---- -----
/s/ Theresa Dwyer Chairperson of the Board and Director
- ---------------------------------------------
Theresa Dwyer
/s/ Dina Dwyer-Owens President, Chief Executive Officer and Director
- --------------------------------------------- (Principal Executive Officer)
Dina Dwyer-Owens
/s/ Robert Tunmire Executive Vice President and Director
- ---------------------------------------------
Robert Tunmire
/s/ Thomas J. Buckley Vice President, Chief Financial Officer and Treasurer
- --------------------------------------------- (Principal Financial and Accounting Officer)
Thomas J. Buckley
/s/ Burton D. Cohen Director
- ---------------------------------------------
Burton D. Cohen
/s/ Donald J. Dwyer, Jr. Director
- ---------------------------------------------
Donald J. Dwyer, Jr.
/s/ John P. Hayes Director
- ---------------------------------------------
John P. Hayes
/s/ Donald E. Latin Director
- ---------------------------------------------
Donald E. Latin
</Table>
II-5
INDEX TO EXHIBITS
<Table>
<Caption>
Exhibit
Number Exhibit
------ -------
4.1 The Dwyer Group, Inc. 1997 Stock Option Plan and Form of
Employee Stock Option Agreement (incorporated by reference
to Exhibit 10.50 to the Registrant's Form 10-KSB for the
fiscal year ended December 31, 1997)
4.2* Amendment No. 1 to the 1997 Stock Option Plan
4.3* Amendment No. 2 to the 1997 Stock Option Plan
5.1* Opinion of Gardere Wynne Sewell LLP
23.1* Consent of BDO Seidman, LLP
23.2* Consent of Gardere Wynne Sewell LLP (included as part of
Exhibit 5.1)
24.1* Power of Attorney (set forth on the signature pages of
this registration statement)
</Table>
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* filed herewith