SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
JUSTIN INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Texas 75-0102185
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2821 W. Seventh Street, Fort Worth, Texas 76107
(Address of Principal Executive Offices) (Zip Code)
JUSTIN INDUSTRIES, INC. 1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full Title of the Plan)
Richard J. Savitz
Vice President-Finance
Justin Industries, Inc.
2821 W. Seventh Street
Fort Worth, Texas 76107
(Name and address of agent for service)
(817) 336-5125
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount to offering aggregate Amount of
to be be price per offering registration
registered registered share (1) price (1) fee (1)
- ------------ ---------- -------- ---------- ------------
Common Stock, 200,000 $16.00 $2,900,000 $944
par value shares
$2.50
- ------------ ---------- -------- ---------- ------------
(1) Pursuant to Rules 457(c) and (h), estimated solely on the basis of the
average of the high and low sales price as reported on the NASDAQ National
Market System for April 29, 1998 in accordance with Rule 457 (c) and 457 (h)
of the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents, which are on file with the Securities and Exchange
Commission, are incorporated by reference in this registration statement:
(a) the Registrant's annual report on Form 10-K, dated March 27, 1998, for
the fiscal year ended December 31, 1997;
(b) No reports have been filed, nor were required to be filed, by the
Company pursuant to Section 13(a) or 15(d) of the Exchange Act since
the end the fiscal year covered by the documents of the Company
referred to in (a) above.;
(c) the description of the Registrant's Common Stock as contained in the
Company's registration statement on Form 10 dated April 24, 1968, as
amended by Amendment No. 1 to Form 10 on Form 8 dated April 27, 1993;
and
(d) the description of the Registrant's Common Stock Purchase Rights
contained in the Company's registration statement on Form 8-A dated
October 6, 1989, as amended by Amendment No. 1 to Form 8-A dated
October 4, 1990.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment to the
registration statement which indicates that all of the 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
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be 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 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 Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Legal matters in connection with the Common Stock being offered hereunder
have been passed upon for the Registrant by Kelly, Hart & Hallman, a
professional corporation. Dee J. Kelly, a director of the Company, is a
shareholder and director of such law firm. Mr. Kelly owns 125,104 shares of the
Company's Common Stock of record and beneficially; 91,612 shares are owned by
the Dee Kelly Corporation with respect to which Mr. Kelly disclaims beneficial
ownership of 30% or 27,484 shares by virtue of the equity interest of Mr.
Kelly's three children in this corporation; and Mr. Kelly presently holds 6,000
shares of exercisable stock options.
Item 6. Indemnification of Directors and Officers.
Article 2.02A(16) of the Texas Business Corporation Act, as amended (the
"TBCA"), empowers the Registrant to indemnify its directors, officers, employees
and agents in a variety of circumstances and to purchase and maintain liability
insurance for those persons, but only to the extent permitted by Article 2.02-1
of the TBCA. Article 2.02-1 of the TBCA, in turn, provides that a corporation
may indemnify any person who was, is or is threatened to be made a party to any
suit or proceeding, whether civil, criminal, administrative, arbitrative or
investigative because the person is or was a director of the Registrant or is or
was serving at its request in the same or another capacity in another
corporation or business association against judgments, penalties, fines,
settlements and reasonable expenses actually incurred if it is determined: (i)
that the person conducted himself in good faith, (ii) that the person reasonable
believed his conduct, with respect to his official capacity, was in the best
interests of the Registrant and (iii) in the case of any criminal proceeding,
that the person had no reasonable cause to believe his conduct was unlawful.
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The Registrant's Articles of Incorporation, as amended, contain a provision
that limits directors' liability. The provision eliminates, to the fullest
extent permitted by the TBCA, the Texas Miscellaneous Corporation Laws Act or
other applicable laws, a director's liability to the Registrant or its
shareholders for monetary damages for an act or omission in the director's
capacity as a director. The TBCA provides that this provision may not eliminate
a director's liability to the extent the director is found liable for (i) a
breach of the director's duty or loyalty to the Registrant or its shareholders,
(ii) an act or omission not in good faith that constitutes a breach of duty of
the director to the Registrant or an act or omission that involves intentional
misconduct or a knowing violation of the law, (iii) a transaction from which the
director received an improper benefit, whether or not the benefit resulted from
an action taken within the scope of the director's office or (iv) an act or
omission for which the liability of a director is expressly provided by
applicable statute. The provision of the Articles of Incorporation does not
limit liability of officers or of directors acting in their capacities as
officers.
The Registrant's bylaws provide that the Registrant must indemnify
directors and officers against liabilities incurred in their capacities as such.
These provisions (i) require that such indemnification be provided, making
indemnification mandatory where, under the TBCA, it would otherwise be
discretionary and (ii) require advancement of expenses incurred in defending a
proceeding if the director or officer seeking such advances provides an
undertaking to repay all amounts so advanced if it ultimately is determined that
he is not entitled to be indemnified.
The Company has purchased directors' and officers' liability insurance
policies. Within the limits of their coverage, the policies insure (1) the
directors and officers of the Company and its subsidiaries against certain
losses resulting from claims against them in their capacities as directors and
officers to the extent that such losses are not indemnified by the Company and
(2) the Company to the extent that it indemnifies such directors and officers
for losses as permitted under the laws of Texas.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Articles of Incorporation of the Registrant, as amended on April
27, 1993 (incorporated by reference to the Registrant's Registration
Statement on Form S-8 dated April 27, 1993)
4.2 By-Laws of the Registrant, as amended (incorporated by reference to
the Registrant's Current Report on Form 8-K dated September 7, 1990)
4.3 Rights Agreement dated as of October 6, 1989 between the Registrant
and Team Bank, N.A., as Rights Agent (incorporated by reference to
the Registrant's Registration Statement on Form 8-A dated October
6, 1989)
4.4 First Amendment to Rights Agreement dated as of October 4, 1990
between the Registrant and Society National Bank, as successor Rights
Agent (incorporated by reference to the Registrant's Amendment No. 1
on Form 8 to Registration Statement on Form 8-A dated October 4, 1990)
5. Opinion of Kelly, Hart & Hallman
23.1 Consent of Ernst & Young LLP
23.2 Consent of Kelly, Hart & Hallman (included in their opinion filed as
Exhibit 5)
99.1 Registrant's Justin Industries, Inc. 1996 Non-Employee Director Stock
Option Plan (incorporated by reference from the company's definitive
proxy statement for the Annual Meeting of Shareholders held on April
11, 1996)
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Item 9. Undertakings
A. Indemnification
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 Securities and Exchange Commission
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.
B. Subsequent Exchange Act Documents
The undersigned 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 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.
C. Other
The Registrant hereby also undertakes:
(1) To file, during any period in which offers or sales are being made
a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(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;
(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 (1)(i) and (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 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, 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
The Registrant. 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 Fort Worth, State of Texas, on May 1, 1998.
JUSTIN INDUSTRIES, INC.
By: /S/ JOHN JUSTIN
John Justin
Chairman of the Board
and Chief Executive Officer
May 1, 1998
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. Each person whose signature appears
below hereby authorizes and appoints John Justin, J. T. Dickenson and Richard J
Savitz, and each of them, any one of whom may act without the joinder of the
others, as his attorney-in-fact to sign on his behalf individually and in the
capacity stated below all amendments to this registration statement as such
attorney-in-fact may deem necessary or appropriate.
/S/ JOHN JUSTIN /S/ MARVIN GEARHART
John Justin Marvin Gearhart
Chairman of the Board Director, May 1, 1998
and Chief Executive Officer
May 1, 1998
/S/ J. T. DICKENSON /S/ DEE J. KELLY
J. T. Dickenson Dee J. Kelly
Director, President Director, May 1, 1998
and Chief Operating Officer
May 1, 1998
/S/ RICHARD J. SAVITZ /S/ JOSEPH R. MUSOLINO
Richard J. Savitz Joseph R. Musolino
Vice President-Finance, Principal Director, May 1,1998
Financial and Accounting Officer
May 1, 1998
/S/ BAYARD H. FRIEDMAN /S/ JOHN V. ROACH
Bayard H. Friedman John V. Roach
Director, May 1, 1998 Director, May 1, 1998
/S/ ROBERT E. GLAZE /S/ WILLIAM E. TUCKER
Robert E. Glaze William E. Tucker
Director, May 1, 1998 Director, May 1, 1998
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JUSTIN INDUSTRIES, INC.
INDEX TO EXHIBITS
Exhibit
No. Description Page*
- ------- ----------- -----
4.1 Articles of Incorporation of the Registrant,
as amended on April 27, 1993 (incorporated by
reference to the Registrant's Registration
Statement on Form S-8 dated April 27. 1993)
4.2 By-Laws of the Registrant, as amended
(incorporated by reference to the Registrant's
Current Report on Form 8-K dated September 7,
1990) N/A
4.3 Rights Agreement dated as of October 6, 1989
between the Registrant and Team Bank, N.A., as
Rights Agent (incorporated by reference to the
Registrant's registration statement on Form 8-A
dated October 10, 1989) N/A
4.4 First Amendment to Rights Agreement dated as of
October 4, 1990 between the Registrant and
Society National Bank, as successor Rights Agent
(incorporated by reference to the Registrant's
Amendment No. 1 on Form 8 to Registration
Statement on Form 8-A dated October 4, 1990) N/A
5 Opinion of Kelly, Hart & Hallman N/A
23.1 Consent of Ernst & Young LLP
23.2 Consent of Kelly, Hart & Hallman (included in
their opinion filed as Exhibit 5) N/A
99.1 Justin Industries, Inc. 1996 Non-Employee
Director Stock Option Plan (incorporated by
reference from the company's definitive proxy
statement for the Annual Meeting of Shareholders
held on April 11, 1996) N/A
* The page numbers where exhibits (other than those incorporated by reference)
can be found are indicated only on the manually signed registration
statement.
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Exhibit 24.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Justin Industries, Inc. 1996 Non-Employee Director
Stock Option Plan of our reports dated January 28, 1998, with respect to the
consolidated financial statements of Justin Industries, Inc. incorporated by
reference in its Annual Report (Form 10-K) for the year ended December 31, 1997
and the related financial statement schedules included therein, filed with the
Securities and Exchange Commission.
/S/ ERNST & YOUNG LLP
Fort Worth, Texas
April 29, 1998
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Kelly, Hart & Hallman
(a professional corporation)
Attorneys at Law
201 Main Street, Suite 2500
Fort Worth, Texas 76102
(817) 332-2500
May 1, 1998
Justin Industries, Inc.
2821 West Seventh Street
Fort Worth, Texas 76101
Re: Registration Statement on Form S-8
Justin Industries, Inc. 1996 Non-Employee Director Stock
Option Plan
Gentlemen:
The opinion set forth below is given pursuant to Item 601(b)(5) of
Regulation S-K for inclusion as Exhibit 5 to the Registration Statement on Form
S-8 (the "Registration Statement") of Justin Industries, Inc., a Texas
corporation (the "Company"), pertaining to the offering of 200,000 shares of
common stock, par value $2.50 per share, of the Company (the "Shares") in
connection with the Company's 1996 Non-Employee Director Stock Option Plan (the
"Plan").
We have examined such matters of law and such certificates, documents and
records of public officials and of officers of the Company as we have deemed
necessary for the purposes of rendering this opinion.
In rendering this opinion, we have made the following assumptions: (i) all
documents submitted to or reviewed by us are accurate and complete and, if not
originals, are true and correct copies of the originals; (ii) the signatures on
each of such documents by the parties thereto are genuine; (iii) each individual
who signed such documents had the legal capacity to do so; and (iv) all persons
who signed such documents on behalf of a corporation were duly authorized to do
so.
Based upon and subject to the foregoing, and the other limitations and
qualifications set forth herein, we are of the opinion that the Plan has been
duly authorized by the Company, and the Shares to be acquired by the
participants under the Plan, when issued in accordance with the terms of the
Plan and the resolutions authorizing the issuance of such shares, will be
validly issued, fully paid and non-assessable.
This opinion is further limited and qualified in all respects as follows:
A. The opinion is specifically limited to matters of the existing
laws of the State of Texas and the United States of America. We express
no opinion as to the applicability of the laws of any other particular
jurisdiction to the transactions described in this opinion.
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B. This opinion is limited to the specific opinions stated herein,
and no other opinion is implied or may be inferred beyond the specific
opinions expressly stated herein.
C. This opinion is based on our knowledge of the law and facts as
of the date hereof. We assume no duty to update or supplement this opinion
to reflect any facts or circumstances that may hereafter come to our
attention or to reflect any changes in any law that may hereafter occur or
become effective.
This opinion is intended solely for your benefit. It is not to be quoted
in whole or in part, disclosed, made available to or relied upon by any other
person, firm or entity without our express prior written consent.
We hereby consent to the use of this opinion in the above-referenced
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Respectfully submitted,
/S/ KELLY, HART & HALLMAN
(a professional corporation)
