As filed with the Securities and Exchange Commission on February 16, 1999
Registration No. 333-
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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)
D.R. HORTON, INC. 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of plan)
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)
------------------------------
<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 (1) Offering Price (1) Fee
- ------------------------------------ -------------------- -------------------- --------------------- -----------------
Common Stock, $.01 par value 5,000,000 shares(2) $18.41 $92,050,000 $25,589.90
==================================== ==================== ==================== ===================== =================
<FN>
(1) Based on the average of the high and low prices of the Common Stock of
D.R. Horton, Inc. (the "Common Stock") as reported on the New York Stock
Exchange on February 12, 1999, pursuant to Rule 457(h) under the
Securities Act of 1933 (the "Act").
(2) 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>
1
<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, 1998, filed with the
Securities and Exchange Commission (the "Commission')
on December 10, 1998;
(b) the Registrant's Quarterly Report on Form 10-Q for
the quarter ended December 31, 1998, filed with the
Commission on February 16, 1999;
(c) the Registrant's Current Reports on Form 8-K (i)
dated November 1, 1998, filed with the Commission on
November 3, 1998, and (ii) dated February 2, 1999,
filed with the Commission on February 2, 1999; 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.
2
<PAGE>
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 interests of the
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
NUMBER Exhibit
------- -------
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, Fort Worth, Texas
23.3 * - Consent of Arthur Andersen LLP, Phoenix, Arizona
24 - Powers of Attorney(3)
- ----------------
* Filed herewith.
(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 December 31, 1998,
filed with the Commission on February 16, 1999.
(3) See page S-2 of this Registration Statement.
3
<PAGE>
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;
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.
4
<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 February 16, 1999.
D.R. HORTON, INC.
By: /s/ Donald R. Horton
------------------------
Donald R. Horton
Chairman of the Board
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 Richard Beckwitt, David J. Keller and Donald J. Tomnitz
together as a group, as his or her true and lawful attorney-in-fact and agent,
for him or her and in his or her 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 or she 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 February 16, 1999
Donald R. Horton (Principal Executive Officer)
/s/ Bradley S. Anderson February 16, 1999
- ------------------------- Director
Bradley S. Anderson
/s/ Richard Beckwitt February 16, 1999
- ------------------------ Director
Richard Beckwitt
/s/ Richard I. Galland February 16, 1999
- ------------------------- Director
Richard I. Galland
/s/ Richard L. Horton February 16, 1999
- -------------------------- Director
Richard L. Horton
/s/ Terrill J. Horton February 16, 1999
- --------------------------- Director
Terrill J. Horton
/s/ David J. Keller February 16, 1999
- ----------------------- Treasurer, Chief Financial
David J. Keller Officer and Director
(Principal Accounting and
Financial Officer)
/s/ Francine I. Neff February 16, 1999
- -------------------------- Director
Francine I. Neff
/s/ Scott J. Stone February 16, 1999
- -------------------------- Director
Scott J. Stone
/s/ Donald J. Tomnitz February 16, 1999
- --------------------------- Director
Donald J. Tomnitz
S-2
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER Exhibit
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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, Fort Worth, Texas
23.3 * - Consent of Arthur Andersen LLP, Phoenix, Arizona
24 - Powers of Attorney(3)
- ----------------
* Filed herewith.
(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 December 31, 1998,
filed with the Commission on February 16, 1999.
(3) See page S-2 of this Registration Statement.
EXHIBIT 5
[Letterhead of D.R. Horton, Inc.]
February 16, 1999
D.R. Horton, Inc.
1901 Ascension Blvd.
Suite 100
Arlington, Texas 76006
Re: D.R. Horton, Inc. 1999 Employee Stock Purchase Plan
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 5,000,000 shares of the Company's Common Stock, $0.01 par
value per share (the "Shares"), issuable from time to time pursuant to the D.R.
Horton, Inc. 1999 Employee Stock Purchase Plan (the "Plan"). I am the Senior
Vice President and General Counsel of the Company, and, as such, I am familiar
with the 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
Plan will be, when issued in accordance with the Plan, 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 D.R. Horton, Inc. 1999 Employee Stock
Purchase Plan of our report dated November 12, 1998, 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, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Fort Worth, Texas
February 10, 1999
EXHIBIT 23.3
[ Letterhead of Arthur Andersen LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated June
19, 1996 included in D.R. Horton, Inc.'s Form 10-K for the year ended September
30, 1998, and to all references to our firm included in this Registration
Statement.
/s/ Arthur Andersen LLP
Phoenix, Arizona
February 10, 1999
