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 of Organization) Identification No.)
2821 West Seventh Street, Fort Worth, Texas 76107
(Address of Principal Executive Offices) (Zip Code)
JUSTIN INDUSTRIES, INC. 1999 PERFORMANCE INCENTIVE PLAN
(Full Title of the Plan)
Richard J. Savitz
Senior Vice President
Justin Industries, Inc.
2821 West 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 Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share (1) Price (1) Fee (1)
Common Stock, 1,000,000 $12.53 $12,531,250 $3,484
par value $2.50
(including associated
common stock
purchase rights)
(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 16, 1999, in accordance with Rule 457(c) and (h) of
the Securities Act of 1933.
<PAGE>
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, 1999, for
the fiscal year ended December 31, 1998;
(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 Securities Exchange Act of
1934 since the end of 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, 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 than 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 251,046 shares of
the Company's Common Stock of record and beneficially; 91,914 shares are
owned by the Dee Kelly Corporation, with respect to which Mr. Kelly
disclaims beneficial ownership of 30% or 27,574 shares by virtue of the
equity interest of Mr. Kelly's three children in this corporation. In
addition, Mr. Kelly presently holds 9,000 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 reasonably 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.
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 of 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 any 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 (i) 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 (ii) the Company to the extent that it indemnifies such
directors and officers for losses as permitted under the laws of the State
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. 1999 Performance Incentive Plan
(incorporated by reference from the Company's definitive proxy statement
for the Annual Meeting of Shareholders held on April 16, 1999)
Item 9. Undertakings.
(a) 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:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 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) The undersigned registrant hereby further 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 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.
(c) 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.
<PAGE>
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 April 16, 1999.
JUSTIN INDUSTRIES, INC.
By: /s/ J.T. Dickenson
J. T. Dickenson
President and Chief Executive Officer
April 16, 1999
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,
Richard J. Savitz and Judy B. Hunter, 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.
Signature Title Date
/s/ John Justin Director April 16, 1999
John Justin
/s/ J.T. Dickenson Director, President April 16, 1999
J. T. Dickenson and Chief Executive Officer
/s/ Richard J. Savitz Senior Vice President, April 16, 1999
Richard J. Savitz Principal Financial and
Accounting Officer
/s/ Marvin Gearhart Director April 16, 1999
Marvin Gearhart
/s/ Robert E. Glaze Director April 16, 1999
Robert E. Glaze
/s/ Dee J. Kelly Director April 16, 1999
Dee J. Kelly
/s/ Joseph R. Musolino Director April 16, 1999
Joseph R. Musolino
/s/ John V. Roach Director and
John V. Roach Chairman of the Board April 16, 1999
/s/ William E. Tucker Director April 16, 1999
William E. Tucker<PAGE>
<PAGE>
JUSTIN INDUSTRIES, INC.
INDEX TO EXHIBITS
Exhibit No. Description Page*
4.1 Articles of Incorporation of the registrant, as amended N/A
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 N/A
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 N/A
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)
4.4 First Amendment to Rights Agreement dated as of N/A
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 N/A
23.1 Consent of Ernst & Young LLP N/A
23.2 Consent of Kelly, Hart & Hallman (included in their N/A
opinion filed as Exhibit 5)
99.1 Justin Industries, Inc. 1999 Performance Incentive N/A
Plan (incorporated by reference to the Company's
definitive proxy statement for the Annual Meeting
of Shareholders held April 16, 1999)
* The page numbers where exhibits (other than those incorporated by
reference) can be found are indicated only on the manually signed
registration statement.
<PAGE>
Exhibit 5
KELLY, HART & HALLMAN
201 Main Street, Suite 2500
Fort Worth, Texas 76102
April 21, 1999
Justin Industries, Inc.
2821 West Seventh Street
Fort Worth, Texas 76101
Re: Registration Statement on Form S-8
Justin Industries, Inc. 1999 Performance Incentive 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 1,000,000 shares
of common stock, par value $2.50 per share, of the Company (the "Shares")
in connection with the Company's 1999 Performance Incentive 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.
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
KELLY, HART & HALLMAN
(a professional corporation)
Exhibit 23.1
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. 1999
Performance Incentive Plan of our reports dated February 4, 1999, 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, 1998 and the related financial statement schedules
included therein, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Fort Worth, Texas
April 14, 1999
