As filed with the Securities and Exchange Commission on April 30, 1998
Registration No. 333-
================================================================================
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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D.R. HORTON, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-2386963
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1901 Ascension Blvd. 76006
Suite 100 (Zip Code)
Arlington, Texas
(Address of Principal Executive Offices)
CONTINENTAL HOMES HOLDING CORP. 1988 STOCK INCENTIVE PLAN(1)
CONTINENTAL HOMES HOLDING CORP. 1986 STOCK INCENTIVE PLAN(1)
(Full title of plans)
Charles N. Warren
Senior Vice President
and General Counsel
1901 Ascension Blvd., Suite 100
Arlington, Texas 76006
(Name and address of agent for service)
817-856-8200
(Telephone number, including area code, of agent for service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
==================================== =================== ============== ============== ============
Proposed Proposed
Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered Per Share (2) Offering Price Fee
(2)
- ------------------------------------ ------------------- -------------- -------------- ------------
Common Stock, $.01 par value 581,963 shares(3) $2.89 to $9.50 $4,077,451 $1,203.00
==================================== =================== ============== ============== ============
<FN>
(1) The Continental Homes Holding Corp. ("Continental") 1988 Stock Incentive
Plan and the Continental Homes Holding Corp. 1986 Stock Incentive Plan (as
amended and restated, collectively, the "Plans") were originally sponsored
by Continental. The outstanding options granted under the Plans were
assumed by the Registrant as successor to Continental pursuant to the
merger of Continental into and with the Registrant.
(2) Based on the prices at which the various outstanding options may be
exercised, pursuant to Rule 457(h) under the Securities Act of 1933 (the
"Act").
(3) Represents shares reserved for issuance pursuant to outstanding options
granted under the Plans. Pursuant to Rule 416(a) under the Act, includes
such indeterminate number of shares of Common Stock as may be issued to
prevent dilution resulting from stock splits, stock dividends or similar
transactions.
</FN>
</TABLE>
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The following documents are incorporated by reference, as of their respective
dates, in this Registration Statement:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1997, filed with the Securities and Exchange Commission
(the "Commission') on December 8, 1997;
(b) the Registrant's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1997, filed with the Commission on January 27, 1998;
(c) the Registrant's Current Reports on Form 8-K (i) dated February 27,
1997 and filed with the Commission on March 13, 1997; (ii) dated
December 19, 1997, filed with the Commission on December 24, 1997;
(iii) dated April 14, 1998 and filed with the Commission on April 14,
1998; and (iv) dated April 20, 1998 and filed with the Commission on
April 21, 1998; and
(d) the description of the Registrant's Common Stock set forth in the
Registrant's Registration Statement on Form 8-A (file #1-14122),
filed with the Commission on December 7, 1995, and amended on April
30, 1998.
In addition, all documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (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
such 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. Any statement contained in a document 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 5. Interests of Named Experts and Counsel
Charles N. Warren, who has delivered to the Registrant a legal opinion
regarding the validity of the shares of Common Stock registered pursuant to this
Registration Statement for use in connection therewith, is Senior Vice
President, General Counsel and an Assistant Secretary of the Registrant and
holds stock options to acquire 200,000 shares of Common Stock at an exercise
price of $9.50 per share.
Item 6. Indemnification of Directors and Officers
The Registrant's Amended and Restated Certificate of Incorporation, as
amended, provides that the Registrant shall, to the full extent permitted by the
General Corporation Law of the State of Delaware (the "DGCL") or other
applicable laws presently or hereafter in effect, indemnify each person who is
or was or who has agreed to become a director or officer of the Registrant, or
each such person who is or was serving or who had agreed to serve at the written
request of the Board of Directors or an officer of the Registrant as an employee
or agent of the Registrant or as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, in
any such case owned or controlled by the Registrant (including the heirs,
executors, administrators or estate of such person), and eliminates the personal
liability of its directors to the full extent permitted by the DGCL or other
applicable laws presently or hereafter in effect. The Registrant has entered
into an indemnification agreement with each of its directors.
Section 145 of the DGCL permits a corporation to indemnify its directors and
officers against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by them in
connection with any action, suit or proceeding brought by third parties, if such
directors or officers acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, have no reasonable cause to
believe their conduct was unlawful. In a derivative action, i.e., one by or in
the right of the corporation, indemnification may be made only for expenses
actually and reasonably incurred by directors and officers in connection with
the defense or settlement of an action or suit, and only with respect to a
matter as to which they shall have acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interest of the
2
<PAGE>
corporation, except that no indemnification shall be made if such person shall
have been adjudged liable to the corporation, although the court in which the
action or suit was brought may determine upon application that the defendant
officers or directors are fairly and reasonably entitled to indemnity for such
expenses despite such adjudication of liability.
Section 102(b)(7) of DGCL provides that a corporation may eliminate or limit
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
provisions 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. No such provision shall eliminate or limit the liability of a director
for any act or omission occurring prior to the date when such provision becomes
effective.
The Registrant also has obtained Directors and Officers Liability Insurance
that provides insurance coverage for certain liabilities which may be incurred
by the Registrant's directors and officers in their capacity as such.
Item 8. Exhibits
EXHIBIT Exhibit
NUMBER -------
-------
4.1 - Registrant's Amended and Restated Certificate of Incorporation,
as amended (1)
4.2 - Registrant's Amended and Restated Bylaws (2)
5 - Opinion of Charles N. Warren, Senior Vice President and General
Counsel of the Registrant
23.1 - Consent of Charles N. Warren, Senior Vice President and General
Counsel of the Registrant (See Exhibit 5)
23.2 - Consent of Ernst & Young LLP
23.3 - Consent of Whittington, McLemore, Land, Davis & White
24 - Powers of Attorney(3)
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(1) Incorporated by reference from Exhibit 3.1 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended September 30, 1995, filed
with the Commission on November 22, 1995.
(2) Incorporated by reference from Exhibit 3.1 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1997,
filed with the Commission on May 14, 1997.
(3) See page S-2 of this Registration Statement.
Item 9. Undertakings
(a) The 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 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;
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<PAGE>
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if 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 Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the 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.
(b) The Registrant hereby undertakes that, for purposes of determining
any liability under the Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to 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) Insofar as indemnification by the Registrant for liabilities
arising under the Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification by the
Registrant 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.
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<PAGE>
SIGNATURES AND POWERS OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all 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 Arlington, State of Texas, on April 30, 1998.
D.R. HORTON, INC.
By:/s/ Donald R. Horton
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Donald R. Horton
Chairman of the Board and President
S-1
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints each of Donald R. Horton, individually,
and Donald R. Horton, David J. Keller, and Richard Beckwitt together as a group,
as his true and lawful attorney-in-fact and agent, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments to
this Registration Statement, including post-effective amendments, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each such
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 each such attorney-in-fact and
agent, each acting alone, 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 on the
dates indicated.
Signature Title Date
--------- ----- ----
/s/ Donald R. Horton Chairman of the Board April 30, 1998
---------------------- and President (Principal
Donald R. Horton Executive Officer)
/s/ Richard Beckwitt Director April 30, 1998
----------------------
Richard Beckwitt
/s/ Richard I. Galland Director April 30, 1998
----------------------
Richard I. Galland
/s/ Richard L. Horton Director April 30, 1998
----------------------
Richard L. Horton
/s/ Terrill J. Horton Director April 30, 1998
---------------------
Terrill J. Horton
/s/ David J. Keller Treasurer, Chief Financial April 30, 1998
--------------------- Officer and Director
David J. Keller (Principal Accounting and
Financial Officer)
/s/ Francine I. Neff Director April 30, 1998
----------------------
Francine I. Neff
/s/ Scott J. Stone Director April 30, 1998
- ----------------------
Scott J. Stone
/s/ Donald J. Tomnitz Director April 30, 1998
----------------------
Donald J. Tomnitz
Director April , 1998
----------------------
Bradley S. Anderson
Director April , 1998
----------------------
W. Thomas Hickcox
<PAGE>
EXHIBIT INDEX
EXHIBIT Exhibit
NUMBER -------
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4.1 - Registrant's Amended and Restated Certificate of Incorporation,
as amended (1)
4.2 - Registrant's Amended and Restated Bylaws (2)
5 - Opinion of Charles N. Warren, Senior Vice President and General
Counsel of the Registrant
23.1 - Consent of Charles N. Warren, Senior Vice President and General
Counsel of the Registrant (See Exhibit 5)
23.2 - Consent of Ernst & Young LLP
23.3 - Consent of Whittington, McLemore, Land, Davis & White
24 - Powers of Attorney(3)
- ----------
(1) Incorporated by reference from Exhibit 3.1 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended September 30, 1995, filed
with the Commission on November 22, 1995.
(2) Incorporated by reference from Exhibit 3.1 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1997,
filed with the Commission on May 14, 1997.
(3) See page S-2 of this Registration Statement.
EXHIBIT 5
[Letterhead of D.R. Horton, Inc.]
April 30, 1998
D.R. Horton, Inc.
1901 Ascension Blvd.
Suite 100
Arlington, Texas 76006
Re: Continental Homes Holding Corp., Inc.
1986 and 1988 Stock Incentive Plans
Ladies and Gentlemen:
This opinion is being delivered in connection with a Registration Statement
on Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, relating to
the issuance by D.R. Horton, Inc., a Delaware corporation (the "Company"), of up
to 581,963 shares of the Company's Common Stock, $0.01 par value per share (the
"Shares"), issuable upon the exercise from time to time of stock options granted
pursuant to the Continental Homes Holding Corp. 1988 Stock Incentive Plan and
the Continental Homes Holding Corp. 1986 Stock Incentive Plan (the "Plans"),
which options were assumed by the Company in connection with the merger of
Continental Homes Holding Corp. into the Company. I am the Senior Vice President
and General Counsel of the Company, and, as such, I am familiar with the Plans.
I am also the holder of stock options that entitle me to acquire up to 200,000
shares of Common Stock under the Company's 1991 Stock Incentive Plan.
In rendering this opinion, I have examined such documents, records and
matters of law as I have deemed necessary for purposes of this opinion. Based
thereon, I am of the opinion that the Shares that may be issued pursuant to the
Plans and the authorized forms of stock option agreements under the Plans will
be, when issued in accordance with the Plans and such agreements, duly
authorized, validly issued, fully paid and non-assessable.
I am licensed to practice law in the State of Texas, and I express no opinion
as to any laws other than those of such jurisdiction and the laws of the United
States of America and the General Corporation Law of the State of Delaware.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Item 5.
Interests of Named Experts and Counsel" in such Registration Statement.
Very truly yours,
/s/ Charles N. Warren
Charles N. Warren
Senior Vice President
and General Counsel
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Continental Homes Holding Corp. 1986 and 1988 Stock
Incentive Plans of our report dated November 7, 1997, with respect to the
consolidated financial statements of D.R. Horton, Inc. included in its Annual
Report (Form 10-K) for the year ended September 30, 1997, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Fort Worth, Texas
April 24, 1998
EXHIBIT 23.3
[Letterhead of Whittington, McLemore, Land, Davis, White & Givens, P.C.]
TO WHOM IT MAY CONCERN:
We consent to the use of our report dated February 7, 1997, with respect to the
combined financial statements as of and for the year ended December 31, 1996, of
S.G. Torrey, Atlanta, Ltd. and Affiliates, included by reference in D.R. Horton,
Inc.'s Form S-8, dated April 30, 1998, filed with the Securities and Exchange
Commission.
Yours very truly,
/s/ Brian Land
Whittington, McLemore, Land, Davis, White & Givens, C.P.A.'s, P.C.
Rome, Georgia
April 30, 1998
