As filed with the Securities and Exchange Commission on May 12, 1999
Registration No. 333-__________
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DAL-TILE INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3548809
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
7834 C.F. HAWN FREEWAY
DALLAS, TX 75217
(214) 398-1411
(Address of principal
executive offices)
DAL-TILE INTERNATIONAL INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
JACQUES R. SARDAS
PRESIDENT, CHIEF EXECUTIVE OFFICER
AND CHAIRMAN OF THE BOARD
DAL-TILE INTERNATIONAL INC.
7834 C.F. HAWN FREEWAY
DALLAS, TX 75217
(214) 398-1411
(Name, address, and telephone number of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Offering Aggregate Registration
Registered Price Per Offering Fee
Share Price
- -------------------------------------------------------------------------------
Common Stock, par value 500,000 $11.75 (2) $5,875,000 $1,633.25
$.01 per share shares (1) (2) (2)
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(1)Includes an indeterminate number of shares of Common Stock that may be
issuable by reason of stock splits, stock dividends or similar
transactions in accordance with Rule 416 under the Securities Act of
1933.
(2)Pursuant to Rule 457(h) and (c) under the Securities Act of 1933, the
amounts are calculated based upon the average of the high and low prices
of a share of Common Stock as reported on the New York Stock Exchange,
Inc. Composite tape on May 10, 1999.
<PAGE>
EXPLANATORY NOTE
This Registration Statement relates to 500,000 shares of common stock
of Dal-Tile International Inc. (the "Company", "we", or "us"), par value
$.01 per share (the "Common Stock"), which may be issued under our 1999
Employee Stock Purchase Plan (the "ESPP").
The documents containing information specified by Part I of this
Registration Statement have been or will be sent or given to participants
in the ESPP, as specified in Rule 428(b)(1) promulgated by the Securities
and Exchange Commission under the Securities Act. Such document(s) are not
required to be filed with the SEC but constitute (along with the documents
incorporated by reference into this Registration Statement pursuant to Item
3 of Part II hereof) a prospectus that meets the requirements of Section
10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file
at the SEC's public reference rooms in Washington, D.C., New York, NY and
Chicago, IL. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the
public from the SEC's web site at http://www.sec.gov. Reports, proxy and
information statements and other information concerning us can also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street,
New York, NY 10005.
The SEC allows us to "incorporate by reference" information into this
registration statement, which means that we can disclose important
information to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is considered to be
part of this registration statement, and later information that we file
with the SEC will automatically update this registration statement. We
incorporate by reference the following documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended, prior to the
termination of the offering:
- Annual Report on Form 10-K for the fiscal year ended
January 1, 1999;
- The description of the Common Stock contained in our
registration statement on Form 8-A, dated July 16, 1996 (File No.
1-11939); and
- The Company's Quarterly Report on Form 10-Q for the quarter ended
April 2, 1999, filed May 10, 1999.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Mark A. Solls
Vice President, General Counsel
and Secretary
Dal-Tile International Inc.
7834 C.F. Hawn Freeway
Dallas, Texas 75217
(214) 398-1411
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the securities offered pursuant to this Registration
Statement has been passed upon for the Company by Mark A. Solls, Esq., Vice
President, General Counsel and Secretary of the Company. Mr. Solls owns
shares and options to purchase shares of Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article SEVENTH of the Second Amended and Restated Certificate of
Incorporation of the Company provides as follows:
"To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended,
a Director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a Director."
Section 145 of the General Corporation Law of the State of Delaware
provides as follows:
A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation), by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the
person in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably believed to be in
or not opposed to the best interests of the corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to believe
his 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 a director, officer, employee or agent of the
corporation, or a person who is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation or business association in connection with the defense or
settlement of an action or suit, if such person has acted in good faith and
in a manner that he or she 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 to be liable to the
corporation unless and only to the extent that the court in which the
action or suit was brought shall determine upon application that the
defendant is fairly and reasonably entitled to indemnity for such expenses
despite such adjudication of liability.
The Company has entered into agreements to provide indemnification for
the Company's directors in addition to the indemnification provided for in
the Restated Bylaws of the Company. These agreements, among other things,
will indemnify the Company's directors to the fullest extent permitted by
Delaware law for certain expenses (including attorneys' fees), losses,
claims, liabilities, judgments, fines and settlement amounts incurred by
such indemnitee in any action or proceeding, including any action by or in
the right of the Company, on account of services as a director or officer
of any affiliate of the Company, or as a director or officer of any other
company or enterprise that the indemnitee provides services to at the
request of the Company.
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
4.1 -- Second Amended and Restated Certificate of Incorporation of the
Company (Filed as Exhibit 3.1 to the Company's Form 10-Q filed on
November 7, 1996 and incorporated herein by reference).
4.2 -- Amended and Restated By-Laws of the Company (Filed as Exhibit 3.2
to the Company's Registration Statement on Form S-1
(No. 333-5069) and incorporated herein by reference).
4.3 -- Specimen form of certificate for common stock (Filed as Exhibit
4.1 to the Company's Form 10-K for its fiscal year ended
January 1, 1999, filed on March 17, 1999 and incorporated herein
by reference).
4.4 -- Dal-Tile International Inc. 1999 Employee Stock Purchase Plan
(Filed as Appendix B to the Company's 1999 Proxy Statment for the
April 29, 1999 annual meeting and incorporated herein by
reference).
5.1 -- Opinion of Mark A. Solls as to the legality of the shares of
Common Stock covered by the Registration Statement.*
23.1 -- Consent of Ernst & Young LLP.*
24.1 -- Powers of Attorney (included on the signature pages).
* Filed herewith.
ITEM 9. UNDERTAKINGS
The Company hereby undertakes:
(a) 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;
(b) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment to 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) 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.
(d) That, for the purpose of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or Section 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company 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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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 of 1933, the
Company 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 Dallas, Texas, on May 12, 1999.
DAL-TILE INTERNATIONAL INC.
By: /s/ Mark A. Solls
-----------------------------------
Mark A. Solls
Vice President, General Counsel and
Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Mark A. Solls, as his or her
true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him in his or her name, place and stead, in any and
all capacities, to sign any and all amendments to this Registration
Statement and any additional registration statements pursuant to
Instruction E to Form S-8 and any and all documents in connection
therewith, and to file the same, with all exhibits thereto, and all
documents in connection therewith, 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 or she might or could do in person, and hereby ratifies,
approves and confirms all that his or her said attorney-in-fact and agent,
or his or her substitute or substitutes, 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/ Jacques R. Sardas
- ------------------------- President, Chief Executive May 12, 1999
Jacques R. Sardas Officer and Chairman of the
Board of Directors
/s/ William C. Wellborn
- ------------------------- Executive Vice President and May 12, 1999
William C. Wellborn Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Douglas D. Danforth
- ------------------------- Director May 12, 1999
Douglas D. Danforth
/s/ John F. Fiedler
- ------------------------- Director May 12, 1999
John F. Fiedler
/s/ John M. Goldsmith
- ------------------------- Director May 12, 1999
John M. Goldsmith
/s/ Vincent A. Mai
- ------------------------- Director May 12, 1999
Vincent A. Mai
/s/ Charles J. Pilliod, Jr.
- ------------------------- Director May 12, 1999
Charles J. Pilliod, Jr.
/s/ Henry F. Skelsey
- ------------------------- Director May 12, 1999
Henry F. Skelsey
/s/ Norman E. Wells, Jr.
- ------------------------- Director May 12, 1999
Norman E. Wells, Jr.
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 Second Amended and Restated Certificate of Incorporation of
the Company (Filed as Exhibit 3.1 to the Company's Form 10-Q
filed on November 7, 1996 and incorporated herein by
reference).
4.2 Amended and Restated By-Laws of the Company (Filed as
Exhibit 3.2 to the Company's Registration Statement on Form
S-1 (No. 333-5069) and incorporated herein by reference).
4.3 Specimen form of certificate for common stock (Filed as
Exhibit 4.1 to the Company's Form 10-K for its fiscal year
ended January 1, 1999, filed on March 17, 1999 and
incorporated herein by reference).
4.4 Dal-Tile International Inc. 1999 Employee Stock Purchase
Plan (Filed as Appendix B to the Company's 1999 Proxy
Statement for the April 29, 1999 annual meeting and
incorporated herein by reference).
5.1 Opinion of Mark A. Solls as to the legality of the
securities covered by the Registration Statement.*
23.1 Consent of Ernst & Young LLP.*
24.1 Powers of Attorney (included on the signature pages).
* Filed herewith.
Exhibit 5.1
[LETTERHEAD OF DAL-TILE INTERNATIONAL INC.]
May 12, 1999
Dal-Tile International
7834 C.F. Hawn Freeway
Dallas, TX 75217
RE: Registration Statement on Form S-8 for the Dal-Tile International
Inc. 1999 Employee Stock Purchase Plan (the "Plan")
Ladies and Gentlemen:
This opinion is delivered in connection with the registration by
Dal-Tile International Inc., a Delaware corporation (the "Company"), on
Form S-8 (the "Registration Statement"), under the Securities Act of 1933
(the "Act"), as amended, of 500,000 shares of common stock of the Company,
par value $.01 per share (the "Common Stock"), issuable upon the purchase
of stock pursuant to the Plan.
In arriving at this opinion, I have examined such corporate
instruments, documents, statements and records of the Company, and I have
examined such statutes and regulations and have conducted such legal
analysis, as I have deemed relevant, necessary and appropriate for the
purposes of this opinion. I have assumed the genuineness of all signatures
and the authenticity of all documents submitted to me as originals, the
conformity to original documents of all the documents submitted to me as
certified or photostatic copies, and the authenticity of the originals of
such latter documents. I also have assumed that any future changes to the
terms and conditions of the Plan will be duly authorized by the Company and
will comply with all applicable laws.
Based on the foregoing, I am of the opinion that the 500,000 shares of
Common Stock to be issued pursuant to the Registration Statement have been
duly authorized and, when issued and delivered by the Company in accordance
with the terms and conditions of the Plan, will be validly issued, fully
paid and nonassessable securities of the Company.
I hereby consent to the reference to my name in the Registration
Statement and further consent to the inclusion of this opinion as Exhibit
5.1 to the Registration Statement. In giving this consent, I do not hereby
admit that I am in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Securities and
Exchange Commission.
The opinion expressed herein is solely for your benefit in connection
with the Registration Statement and may not be relied on in any manner or
for any purpose by any other person or entity and may not be quoted in
whole or in part without my prior written consent.
Very truly yours,
/s/ Mark A. Solls
-------------------------------
Mark A. Solls
Vice President, General Counsel
and Secretary
EXHIBIT 23.1
We consent to the incorporation by reference in the Registration Statement
(Form S-8) related to the 1999 Employee Stock Purchase Plan of Dal-Tile
International Inc. of our report dated February 10, 1999, with respect to
the consolidated financial statements and schedule of Dal-Tile
International Inc. included in its Annual Report (Form 10-K) for the year
ended January 1, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
---------------------
ERNST & YOUNG LLP
May 12, 1999
Dallas, Texas
