As filed with the Securities and Exchange Commission on February 25, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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DYCOM INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
Florida 59-1277135
State or other jurisdiction of (I.R.S. Employer
ncorporation or organization) Identification Number)
First Union Center
4440 PGA Boulevard, Suite 600
Palm Beach Gardens, Florida 33410
(Address of Principal Executive Offices)
DYCOM INDUSTRIES, INC.
1998 INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
-------------------------
MARC R. TILLER
General Counsel & Corporate Secretary
Dycom Industries, Inc.
First Union Center
4440 PGA Boulevard, Suite 600
Palm Beach Gardens, Florida 33410
(Name and address of agent for service)
(561) 627-7171
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be to be Offering Price Per Aggregate Registration
Registered Registered Share Offering Price Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 37,500 (1) $27.042 (1) $1,014,075 $ 281.91
par value $0.33 1/3 per
share 2,173,730 (2) $32.406 (2) $70,441,895 $19,582.85
-----------
$19,864.76
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</TABLE>
(1) Pursuant to Rule 457(h), the offering price is based on the per share
exercise price of options outstanding under the Dycom Industries, Inc.
1998 Incentive Stock Option Plan.
(2) Pursuant to Rule 457(c) and 457(h), the offering price is based on
$32.406 per share for 2,173,730 shares based on the average of the high
and low prices of Common Stock on the New York Stock Exchange
consolidated reporting system on February 18, 1999, and is estimated
solely for the purpose of calculating the registration fee.
<PAGE>
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
- --------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (hereinafter, the
"Securities Act"), and the "Note" to Part I of Form S-8.
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed or will be filed by Dycom
Industries, Inc. (the "Registrant") with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Act or the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are incorporated as of their
respective dates in this Registration Statement by reference and shall be deemed
to be a part hereof:
(i) the Registrant's Annual Report on Form 10-K for the
fiscal year ending July 31, 1998;
(ii) the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended October 31, 1998; and
(iii) the description of the common stock, par value
$0.331/3 per share, contained in the Registrant's
Registration Statement on Form 8-A filed with the
Commission on September 11, 1990.
All documents 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, are incorporated by reference
in this Registration Statement and are a part hereof from the date of filing
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 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The By-Laws of the Registrant provide that the Registrant shall
indemnify each director and officer of the Registrant to the fullest extent
permitted by law and limits the liability of directors to the Registrant and its
stockholders for monetary damages in certain circumstances. The Registrant has
insured its directors and officers against certain civil liabilities in
connection with the registration, offering and sale of the securities.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition, each
director will continue to be subject to liability for (a) violations of the
criminal law, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful, (b)
deriving an improper
<PAGE>
personal benefit from a transaction, (c) voting for or assenting to an unlawful
distribution and (d) willful misconduct or a conscious disregard for the best
interests of the Registrant in a proceeding by or in the right of the
shareholder. The statute does not affect a director's responsibilities under any
other law, such as the federal securities laws or state or federal environmental
laws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration
Statement:
Exhibit No. Description of Document
- ----------- -----------------------
4.1 Articles of Incorporation, (incorporated by reference to the
Registrant's Form S-1 Registration Statement filed with the
Commission on October 29, 1986).
4.2 The amendment to the Articles of Incorporation,
(incorporated by reference to the Registrant's Proxy
Statement filed with the Commission on November 6, 1990).
4.3 Bylaws of the Registrant, (incorporated by reference to the
Registrant's Form 8-K filed with the Commission on September
14, 1992).
4.4 The amendments to the Bylaws of the Registrant,
(incorporated by reference to the Registrant's Annual Report
on Form 10-K for the fiscal years ended July 31, 1992 and
July 31, 1994).
4.5 Dycom Industries, Inc. 1998 Incentive Stock Option Plan,
(incorporated by reference to the Company's Proxy Statement
filed with the Commission on September 30, 1998).
5 Opinion of Akerman, Senterfitt & Eidson, counsel to the
Registrant, as to the legality of the securities registered
hereby.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Akerman, Senterfitt & Eidson (included in Exhibit
5).
24 Power of Attorney (included on the signature pages to this
Registration Statement).
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
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;
<PAGE>
(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; and
(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, each filing
of the Registrant's annual report pursuant to Section 13(a) or 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.
(c) 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 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.
<PAGE>
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 Palm Beach Gardens, State of Florida, on the 22nd day
of February, 1999.
DYCOM INDUSTRIES, INC.
By: THOMAS R. PLEDGER
-----------------------------------------
Name: Thomas R. Pledger
Title: Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Thomas R. Pledger, Steven
Nielsen and Douglas J. Betlach, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities, to sign and
file (1) any and all amendments (including post-effective amendments) to this
Registration Statement, with all exhibits thereto, and other documents in
connection therewith and (2) a registration statement, and any and all
amendments thereto, relating to the offering covered hereby filed pursuant to
Rule 462(b) under the Securities Act, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent 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 he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact, agent or their substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated as of February 22, 1999.
Signature Title
--------- -----
THOMAS R. PLEDGER Chairman and Chief Executive Officer
- ------------------------------------- (Principal Executive Officer)
Thomas R. Pledger
STEVEN NIELSEN President, Chief Operating Officer and
- ------------------------------------- Director
Steven Nielsen
DOUGLAS J. BETLACH Vice President, Chief Financial Officer,
- ------------------------------------- Treasurer (Principal Financial and
Douglas J. Betlach Accounting Officer)
LOUIS W. ADAMS, JR. Director
- -------------------------------------
Louis W. Adams, Jr.
<PAGE>
Signature Title
--------- -----
THOMAS G. BAXTER Director
- -------------------------------------
Thomas G. Baxter
WALTER L. REVELL Director
- -------------------------------------
Walter L. Revell
RONALD P. YOUNKIN Director
- -------------------------------------
Ronald P. Younkin
<PAGE>
Exhibit Index
Exhibit No. Description of Document
4.1 Articles of Incorporation, (incorporated by reference to the
Registrant's Form S-1 Registration Statement filed with the
Commission on October 29, 1986).
4.2 The amendment to the Articles of Incorporation,
(incorporated by reference to the Registrant's Proxy
Statement filed with the Commission on November 6, 1990).
4.3 Bylaws of the Registrant, (incorporated by reference to the
Registrant's Form 8-K filed with the Commission on September
14, 1992).
4.4 The amendments to the Bylaws of the Registrant,
(incorporated by reference to the Registrant's Annual Report
on Form 10-K for the fiscal years ended July 31, 1992 and
July 31, 1994).
4.5 Dycom Industries, Inc. 1998 Incentive Stock Option Plan,
(incorporated by reference to the Company's Proxy Statement
filed with the Commission on September 30, 1998).
5 Opinion of Akerman, Senterfitt & Eidson, counsel to the
Registrant, as to the legality of the securities registered
hereby.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Akerman, Senterfitt & Eidson (included in Exhibit
5).
24 Power of Attorney (included on the signature pages to this
Registration Statement).
EXHIBIT 5
[Akerman, Senterfitt & Eidson, P.A. Letterhead]
February 22, 1999
Dycom Industries, Inc.
4440 PGA Boulevard, Suite 600
Palm Beach Gardens, Florida 33410
Ladies and Gentlemen:
We have acted as counsel to Dycom Industries, Inc., a Florida
corporation (the "Company"), with respect to the filing by the Company with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
of a Registration Statement on Form S-8 (the "Registration Statement") covering
the issuance of up to 2,211,230 shares of the Company's shares of Common Stock,
par value $0.33 1/3 per share (the "Shares").
Based on our review of the Company's organizational documents, the
option plan pursuant to which the Shares are issuable and such other documents
and records as we have deemed necessary and appropriate, we are of the opinion
that:
1. The Company is duly formed and validly existing as a corporation in
good standing under the laws of the State of Florida.
2. The Shares have been duly authorized for issuance, and, when sold,
issued and paid for as contemplated by the Registration Statement, the Shares
will have been validly and legally issued and will be fully paid and
nonassessable under the laws of the State of Florida.
We consent to the filing of this opinion of counsel as Exhibit 5 to the
Registration Statement.
Very truly yours,
AKERMAN, SENTERFITT & EIDSON, P.A.
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Dycom Industries, Inc. on Form S-8 of our report dated August 31, 1998,
appearing in the Annual Report on Form 10-K of Dycom Industries, Inc. for the
year ended July 31, 1998.
DELOITTE & TOUCHE LLP
Certified Public Accountants
West Palm Beach, Florida
February 19, 1999
