As filed with the Securities and Exchange Commission on May 29, 2002
REGISTRATION NO. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
D.R. HORTON, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1531 75-2386963
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
incorporation or organization) Classification Code Number)
PAUL W. BUCHSCHACHER
VICE PRESIDENT AND CORPORATE COUNSEL
1901 ASCENSION BLVD., SUITE 100 1901 ASCENSION BLVD., SUITE 100
ARLINGTON, TEXAS 76006 ARLINGTON, TEXAS 76006
(817) 856-8200 (817) 856-8200
(Address, including zip code, and (Name, address, including zip code, and
telephone number, including area code, of telephone number, including area code, of
registrant's principal executive offices) agent for service)
THE COMMISSION IS REQUESTED TO MAIL COPIES OF ALL ORDERS,
NOTICES AND COMMUNICATIONS TO:
IRWIN F. SENTILLES, III
GIBSON, DUNN & CRUTCHER LLP
2100 MCKINNEY AVENUE, SUITE 1100
DALLAS, TEXAS 75201
(214) 698-3100
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this registration statement becomes effective.
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If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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CALCULATION OF REGISTRATION FEE
=================================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1)(2) PER SHARE(3) PRICE FEE(4)
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common stock (par value $.01 per share)......... 15,000,000 shares $ 25.48 $ 382,200,000 $ 35,162
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(1) Includes 11,990,517 shares of common stock which are being carried forward
from the registrant's post-effective amendment no. 1 to registration
statement filed on June 13, 2001 (file no. 333-56491). Of the 9,006,603
shares initially included in the prior registration statement, 1,012,925
shares were issued in July 2001, and the remaining shares included in such
registration statement were increased to 11,990,517 pursuant to Rule 416(b)
under the Securities Act as a result of the registrant's three-for-two
stock split, effected as a stock dividend, paid on April 9, 2002.
(2) If, as a result of stock splits, stock dividends or similar transactions,
the number of securities purported to be registered changes, the provisions
of Rule 416(a) under the Securities Act shall apply, and this registration
statement shall be deemed to cover the additional securities resulting from
the split of, or the dividend on, the securities covered by this
registration statement.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based on the average of the high and low reported
sales prices of the common stock on the New York Stock Exchange on May 24,
2002.
(4) A registration fee of $33,808 was paid in connection with the registration
of the 11,990,517 shares of common stock carried forward into this
registration statement. Pursuant to Rule 416 under the Securities Act, a
registration fee is being paid for the balance of the shares covered by
this registration statement.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities nor a solicitation of an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 29, 2002
PROSPECTUS
D.R. HORTON, INC.
By this prospectus, we offer up to
15,000,000 shares
of common stock
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This prospectus relates to 15,000,000 shares of our common stock that we
may offer for sale from time to time in connection with acquisitions by us or
our subsidiaries of the assets or securities of other entities. We also may
issue shares upon the exercise of options, warrants, convertible securities or
other similar securities assumed or issued by us from time to time in connection
with these acquisitions.
We anticipate that shares issued in connection with acquisitions will be
valued, for purposes of determining the number of shares to be issued, at prices
related to the market price of our common stock as of one or more times during
the period between the time the terms of an acquisition are agreed upon and the
time the shares are issued.
No underwriting discounts or commissions will be paid in connection with
the issuance of shares, although finders' fees may be paid from time to time in
connection with acquisitions. Any person receiving finders' fees may be deemed
an underwriter within the meaning of the Securities Act of 1933.
Our common stock is traded on the New York Stock Exchange under the symbol
"DHI." On May 28, 2002, the last sale price of our common stock as reported on
the New York Stock Exchange was $25.06 per share.
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INVESTING IN THE SHARES INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON
PAGE 2.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is May __, 2002
WHERE YOU CAN FIND MORE INFORMATION
D.R. Horton, Inc. files annual, quarterly and special reports, proxy
statements and other information with the Securities and Exchange Commission
under the Securities Exchange Act of 1934. You may read and copy this
information at the Public Reference Room of the SEC, 450 Fifth Street, N.W.,
Room 10024, Washington, D.C. 20549, at prescribed rates. You may obtain
information on the operation of the Public Reference Room by calling the
SEC at (800) SEC-0330.
The SEC also maintains an internet world wide web site that contains
reports, proxy statements and other information about issuers, like us, who file
electronically with the SEC. The address of that site is http://www.sec.gov.
You can also inspect reports, proxy statements and other information about
us at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New
York, New York 10005.
We have filed with the SEC a registration statement on Form S-4 that
registers the shares we are offering. The registration statement, including the
attached exhibits and schedules, contains additional relevant information about
us and the securities offered. The rules and regulations of the SEC allow us to
omit certain information included in the registration statement from this
prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information into this
prospectus. This 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 prospectus, except
for any information that is superseded by information that is included directly
in this or another document.
This prospectus includes by reference the documents listed below that we
have previously filed with the SEC and that are not included in or delivered
with this document. They contain important information about our company and its
financial condition.
FILING PERIOD OR DATE
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Annual Report on Form 10-K Year ended September 30, 2001
Quarterly Reports on Form 10-Q Quarter ended December 31, 2001
Quarter ended March 31, 2002
Current Reports on Form 8-K October 22, 2001
November 8, 2001
January 22, 2002
January 24, 2002
January 31, 2002
February 15, 2002
February 21, 2002 (including
amendment filed March 25, 2002)
April 3, 2002
May 29, 2002
Pages 101 through 109 under the captions "Directors and Executive
Officers" through "Compensation Committee Interlocks and Insider
Participation," and page 115 under the caption "Section 16(a)
Beneficial Ownership Reporting Compliance," contained in our Proxy
Statement/Prospectus, relating to our 2002 annual meeting of
stockholders and incorporated into our Annual Report on Form 10-K.
This prospectus also includes by reference financial statements relating to
Schuler Homes, Inc., which we recently acquired, included in the documents
listed below that Schuler previously filed with the SEC and that are not
included in or delivered with this document. Such financial statements contain
important information about Schuler and its financial condition.
The unaudited financial statements of Western Pacific Housing for the
nine months ended December 31, 2000 contained in pages F-3 through
F-15 of Amendment No. 1 to Registration Statement on Form S-3 of
Schuler Holdings, Inc., as filed with the SEC on March 30, 2001
(File No. 333-56354).
1
The financial statements of Schuler Homes, Inc., Schuler Residential,
Inc. and Western Pacific Housing contained in pages F-1 through F-37
of the Annual Report on Form 10-K of Schuler Homes, Inc. for the year
ended March 31, 2001 (File No. 0-32461).
The financial statements of Schuler Homes, Inc. contained in pages 5
through 16 of the Quarterly Report on Form 10-Q of Schuler Homes, Inc.
for the quarter ended December 31, 2001 (File No. 0-32461).
We incorporate by reference additional documents that we may file with the
SEC between the date of this prospectus and the date of the closing of
each offering. These documents include periodic reports, such as Annual Reports
on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K
(other than filings under Item 9), as well as proxy statements.
You can obtain any of the documents incorporated by reference in this
document from us without charge, excluding any exhibits to those documents
unless the exhibit is specifically incorporated by reference in this prospectus.
You can obtain documents incorporated by reference in this prospectus by
requesting them in writing or by telephone from us at the following address:
Assistant to Corporate Counsel
D.R. Horton, Inc.
1901 Ascension Boulevard
Suite 100
Arlington, Texas 76006
(817) 856-8200, ext. 1046
IN ORDER TO ENSURE TIMELY DELIVERY OF THE DOCUMENTS INCORPORATED BY
REFERENCE IN THIS PROSPECTUS, ANY REQUEST SHOULD BE MADE NO LATER THAN FIVE
BUSINESS DAYS PRIOR TO THE DATE ON WHICH YOU PLAN TO MAKE A FINAL INVESTMENT
DECISION.
FORWARD-LOOKING STATEMENTS
The statements contained in this prospectus and the information
incorporated by reference include forward-looking statements within the meaning
of the Private Securities Litigation Reform Act of 1995. These forward-looking
statements involve risks, uncertainties and other factors that may cause our
actual results to differ materially from the results we discuss in the
forward-looking statements. These risks, uncertainties and other factors
include, but are not limited to:
o changes in general economic, real estate construction and other
business conditions;
o changes in interest rates and the availability of mortgage financing;
o governmental regulations and environmental matters;
o our substantial debt;
o competitive conditions within our industry;
o the availability of capital; and
o our ability to effect our growth strategies successfully.
See the section entitled "Risk Factors."
We undertake no obligation to update publicly any forward-looking
statements, whether as a result of new information, future events or otherwise.
However, any further disclosures made on related subjects in additional
documents incorporated into this prospectus by reference should be consulted.
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The terms "we", "our" and "us" refer to D.R. Horton, Inc. unless the
context suggests otherwise. The term "you" refers to a prospective investor.
THE COMPANY
We are a national homebuilder. We construct and sell single-family homes in
metropolitan areas of the Mid-Atlantic, Midwest, Southeast, Southwest and West
regions of the United States. We offer high quality homes, designed principally
for first-time and move-up home buyers. Our homes generally range in size from
1,000 to 5,000 square feet and range in price from $80,000 to $900,000. For the
year ended September 30, 2001, we closed 21,371 homes with an average sales
price approximating $200,700. For the six months ended March 31, 2002, we closed
12,330 homes with an average sales price approximating $215,700.
2
We are one of the largest and most geographically diversified homebuilders
in the United States, with operating divisions in 21 states and 42 markets. The
markets we operate in include: Albuquerque, Atlanta, Austin, Birmingham,
Charleston, Charlotte, Chicago, Colorado Springs, Columbia, Dallas, Denver, Fort
Myers/Naples, Fort Worth, Greensboro, Greenville, Hawaii, Hilton Head, Houston,
Jacksonville, Killeen, Las Vegas, Los Angeles, Louisville, Maryland-D.C.,
Miami/West Palm Beach, Minneapolis/St. Paul, Myrtle Beach, New Jersey, Orlando,
Phoenix, Portland, Raleigh/Durham, Richmond, Sacramento, Salt Lake City, San
Antonio, San Diego, San Francisco Bay Area, Seattle, Tucson, Virginia-D.C. and
Williamsburg.
We build homes under the following names: D.R. Horton, Arappco, Cambridge,
Continental, Dietz-Crane, Dobson, Emerald, Mareli, Melody, Milburn, Regency,
Schuler, SGS, Stafford, Torrey, Trimark and Western Pacific.
Our financial reporting segments consist of homebuilding and financial
services. Our homebuilding operations comprise the most substantial part of our
business, with more than 98% of consolidated revenues in fiscal 1999, 2000 and
2001. The homebuilding operations segment generates the majority of its revenues
from the sale of complete homes with a lesser amount from the sale of land and
lots. The financial services segment generates its revenues from originating and
selling mortgages and collecting fees for title insurance and closing services.
Financial information, including revenue, pre-tax income and identifiable assets
of both of our reporting segments are included in our consolidated financial
statements.
Donald R. Horton began our homebuilding business in 1978. In 1991 we were
incorporated in Delaware to acquire the assets and businesses of our predecessor
companies which were residential home construction and development companies
owned or controlled by Mr. Horton. Since July 1993, we have acquired 18 other
homebuilding companies, including Schuler Homes, Inc., which we acquired on
February 21, 2002. Schuler strengthened our market position in several markets,
including California, while expanding our geographic presence and product
offerings in other markets in the West region. For the 12 months ended September
30, 2001, Schuler, together with Western Pacific Housing with which it combined
in April 2001, closed 5,254 homes with an average sales price approximating
$293,000. From October 1, 2001 through the date we acquired Schuler, the Schuler
operations closed 2,019 homes with an average sales price approximating
$276,000. The consideration we paid for Schuler consisted of approximately 20.1
million shares of common stock and $168.7 million in cash, plus the assumption
of $802.2 million in Schuler debt. In addition, we issued Schuler employees
options to purchase approximately 527,000 shares of our common stock to replace
their Schuler options.
Our principal executive offices are at 1901 Ascension Blvd., Suite 100,
Arlington, Texas 76006, our telephone number is (817) 856-8200, and our Internet
website address is www.drhorton.com. Information on our Internet website is not
part of this prospectus.
ACQUISITION TRANSACTIONS
By means of this prospectus, we may offer shares of our common stock for
sale from time to time in connection with acquisitions by us or our subsidiaries
of the assets or securities of other entities. We also may issue the shares upon
the exercise of options, warrants, convertible securities or other similar
securities assumed or issued by us from time to time in connection with these
acquisitions. These acquisitions may include exchanges, mergers and other forms
of business combinations. The consideration that we will pay for these
acquisitions may consist of cash, assumption of liabilities, evidences of debt,
shares or combinations thereof.
We anticipate that the terms of the acquisitions in which we issue shares
will be determined through direct negotiations with the securities holders or
controlling persons of the entities being acquired. Factors taken into account
in determining the terms may include earnings power, quality of management,
properties, market location and position, and growth potential. We also
anticipate that shares issued in connection with acquisitions will be valued,
for purposes of determining the number of shares to be issued, at prices related
to the market price of our common stock as of one or more times during the
period between the time the terms of an acquisition are agreed upon and the time
the shares are issued.
RISK FACTORS
Before acquiring these securities, you should consider all of the
information set forth in this prospectus and the information incorporated by
reference and, in particular, you should evaluate the risk factors set forth
below.
3
BECAUSE OF THE CYCLICAL NATURE OF OUR INDUSTRY, FUTURE CHANGES IN GENERAL
ECONOMIC, REAL ESTATE CONSTRUCTION OR OTHER BUSINESS CONDITIONS COULD ADVERSELY
AFFECT OUR BUSINESS.
Cyclical Industry. The homebuilding industry is cyclical and is
significantly affected by changes in general and local economic conditions, such
as:
o employment levels;
o availability of financing for home buyers;
o interest rates;
o consumer confidence; and
o housing demand.
An oversupply of alternatives to new homes, such as rental properties and
used homes, could depress new home prices and reduce our margins on the sale of
new homes.
The terrorist attacks at the World Trade Center and the Pentagon or other
acts of violence in the future, and any corresponding response by the United
States, may adversely affect general economic conditions or cause a slowdown of
the national economy.
Inventory Risks. Inventory risks can be substantial for homebuilders. We
must continuously seek and make acquisitions of land for expansion into new
markets and for replacement and expansion of land inventory within our current
markets. The risks inherent in purchasing and developing land increase as
consumer demand for housing decreases. Thus, we may have bought and developed
land on which we cannot build and sell homes. The market value of undeveloped
land, building lots and housing inventories can fluctuate significantly as a
result of changing market conditions. We cannot assure you that the measures we
employ to manage inventory risks will be successful.
In addition, inventory carrying costs can be significant and can result in
losses in a poorly performing project or market. In the event of significant
changes in economic or market conditions, we may have to sell homes at a loss.
Supply Risks. The homebuilding industry has from time to time experienced
significant difficulties, including:
o shortages of qualified trades people;
o reliance on local subcontractors, who may be inadequately capitalized;
o shortages of materials; and
o volatile increases in the cost of materials, particularly increases in
the price of lumber, drywall and cement, which are significant
components of home construction costs.
Risks from Nature. Weather conditions and natural disasters, such as
hurricanes, tornadoes, earthquakes, volcanic activity, floods and fires, can
harm the homebuilding business. The climates and geology of many of the states
in which we operate, including California, Florida, Georgia, Hawaii, North
Carolina, Oregon, South Carolina, Texas and Washington, present increased risks
of natural disaster.
As a result of all of the foregoing, in the future, potential customers may
be less willing or able to buy our homes, or we may take longer or pay more
costs to build them. We may not be able to recapture increased costs by raising
prices in many cases because we fixed our prices up to six months in advance of
delivery by signing home sales contracts. In addition, some home buyers may
cancel or not honor their home sales contracts altogether.
FUTURE INCREASES IN INTEREST RATES OR REDUCTIONS IN MORTGAGE AVAILABILITY COULD
PREVENT POTENTIAL CUSTOMERS FROM BUYING OUR HOMES AND ADVERSELY AFFECT OUR
BUSINESS.
Virtually all our customers finance their acquisitions through lenders
providing mortgage financing. Increases in interest rates or decreases in
availability of mortgage financing could depress the market for new homes
because of the increased monthly mortgage costs to potential home buyers. Even
if potential customers do not need financing, changes in interest rates and
mortgage availability could make it harder for them to sell their homes to
potential buyers who need financing. This could adversely affect our results of
operations.
In addition, we believe that the availability of FHA and VA mortgage
financing is an important factor in marketing many of our homes. Any limitations
or restrictions on the availability of such financing could adversely affect our
sales.
4
GOVERNMENTAL REGULATIONS COULD INCREASE THE COST AND LIMIT THE AVAILABILITY OF
OUR DEVELOPMENT AND HOMEBUILDING PROJECTS AND ADVERSELY AFFECT OUR BUSINESS.
We are subject to extensive and complex regulations that affect the
development and homebuilding process, including zoning, density and building
standards. These regulations often provide broad discretion to the administering
governmental authorities. This can delay or increase the costs of development or
homebuilding.
We also are subject to a variety of local, state and federal laws and
regulations concerning protection of the environment. These environmental laws
may result in delays, may cause us to incur substantial compliance and other
costs, and can prohibit or severely restrict development and homebuilding
activity in environmentally sensitive regions or areas.
OUR SUBSTANTIAL DEBT COULD ADVERSELY AFFECT OUR FINANCIAL CONDITION.
We have a significant amount of debt. As of March 31, 2002, our
consolidated debt was approximately $2.9 billion.
Possible Consequences. The amount of our debt could have important
consequences to you. For example, it could:
o limit our ability to obtain future financing for working capital,
capital expenditures, acquisitions, debt service requirements or other
requirements;
o require us to dedicate a substantial portion of our cash flow from
operations to payment of or on our debt and reduce our ability to use
our cash flow for other purposes;
o limit our flexibility in planning for, or reacting to, the changes in
our business;
o place us at a competitive disadvantage because we have more debt than
some of our competitors; and
o make us more vulnerable in the event of a downturn in our business or
in general economic conditions.
Dependence on Future Performance. Our ability to meet our debt service and
other obligations will depend upon our future performance. We are engaged in
businesses that are substantially affected by changes in economic cycles. Our
revenues and earnings vary with the level of general economic activity in the
markets we serve. Our businesses are also affected by financial, political,
business and other factors, many of which are beyond our control. The factors
that affect our ability to generate cash can also affect our ability to raise
additional funds for these purposes through the sale of equity securities, the
refinancing of debt, or the sale of assets. Changes in prevailing interest rates
may affect our ability to meet our debt service obligations, because borrowings
under our revolving credit facility bear interest at floating rates. We have
entered into "interest rate swap" agreements for only a portion of our
outstanding borrowings.
Our debt payment obligations for the 12 months beginning April 1, 2002
total $213.4 million. Based on the current level of operations, we believe our
cash flow from operations, available cash and available borrowings under our
revolving credit facility will be adequate to meet our future liquidity needs.
We cannot assure you, however, that in the future our business will generate
sufficient cash flow from operations or that borrowings will be available to us
in an amount sufficient to enable us to pay or refinance our indebtedness or to
fund other liquidity needs.
Indenture and Credit Facility Restrictions. The indentures governing our
outstanding public debt and our revolving credit facility impose restrictions on
our operations and activities. The most significant restrictions relate to debt
incurrence, lien incurrence, sales of assets and cash distributions by us and
require us to comply with certain financial covenants. If we fail to comply with
any of these restrictions or covenants, the trustees or the banks, as
appropriate, could cause our debt to become due and payable prior to maturity.
In addition, available credit under our revolving credit facility is subject to
limitations based on specified percentages of the costs of unsold homes,
developed lots and lots under development included in inventory and the amount
of other senior, unsecured indebtedness. Under the most restrictive of the
limitations imposed by our indentures and revolving credit agreement, as of
March 31, 2002, we were permitted to increase our homebuilding debt by
approximately $1,376.8 million, which includes approximately $306.1 million
available under our revolving credit facility.
HOMEBUILDING IS VERY COMPETITIVE, AND COMPETITIVE CONDITIONS COULD ADVERSELY
AFFECT OUR BUSINESS.
The homebuilding industry is highly competitive. Homebuilders compete not
only for home buyers, but also for desirable properties, financing, raw
materials and skilled labor. We compete with other local, regional and national
homebuilders, including those with a sales presence on the Internet, often
within larger subdivisions designed, planned and developed by such homebuilders.
The competitive conditions in the homebuilding industry could result in:
5
o difficulty in acquiring suitable land at acceptable prices;
o increased selling incentives;
o lower sales or profit margins; or
o delays in construction of our homes.
OUR FUTURE GROWTH REQUIRES ADDITIONAL CAPITAL, WHICH MAY NOT BE AVAILABLE.
Our operations require significant amounts of cash. We will be required to
seek additional capital, whether from sales of equity or debt or additional bank
borrowings, for the future growth and development of our business. We can give
no assurance as to the terms or availability of such additional capital.
Moreover, the indentures for our outstanding debt and our revolving credit
facility contain provisions that restrict the debt we may incur in the future.
If we are not successful in obtaining sufficient capital, it could reduce our
sales and may adversely affect our future growth and results of operations.
WE CANNOT ASSURE YOU THAT OUR GROWTH STRATEGIES WILL BE SUCCESSFUL.
Since 1993, we have acquired many homebuilding companies. In addition to
our internal growth, we are currently focusing on strategic acquisitions of
homebuilding companies. Successful strategic acquisitions require the
integration of operations and management and other efforts to realize the
benefits that may be available. Although we believe that we have been successful
in doing so in the past, we can give no assurance that we will continue to be
able to identify, acquire and integrate successful strategic acquisitions in the
future. Moreover, we may not be able to implement successfully our operating and
growth strategies within our existing markets.
WE CANNOT ASSURE YOU THAT AT OR AFTER AN ACQUISITION OUR SHARES OF COMMON STOCK
WILL TRADE AT OR NEAR THE PRICES UPON WHICH THE ACQUISITION WAS BASED.
The market price of our shares of common stock is subject to fluctuation.
As a result, the market value of the shares that you may receive in connection
with an acquisition may increase or decrease prior to and following the
completion of the acquisition. We cannot assure you that at or after the
completion of the acquisition our shares will trade at or near the prices upon
which the acquisition was based, or the prices at which our shares have traded
in the past. The prices at which our shares trade may be influenced by many
factors, including the liquidity of the shares, the impact of the shares issued
in acquisitions or upon possible conversion of our outstanding zero coupon
convertible senior notes, investor perceptions of us and the homebuilding
industry, our operating results, our dividend policy and general economic and
market conditions.
PROVISIONS IN OUR CHARTER OR BYLAWS COULD PREVENT AN ACQUISITION OF US OR LIMIT
THE PRICE THAT INVESTORS MIGHT BE WILLING TO PAY FOR SHARES OF OUR COMMON STOCK.
We currently have the provisions in our charter or bylaws which could be
considered to be "anti-takeover" provisions. These provisions and their possible
effects are described under the caption "Description of Capital Stock."
Additionally, the issuance of preferred stock by us under certain circumstances
could have the effect of delaying or preventing a change of control or other
corporate action.
6
SUMMARY CONSOLIDATED AND PRO FORMA COMBINED FINANCIAL INFORMATION
AND OPERATING DATA
The following summary consolidated financial information for the five years
ended September 30, 2001, is derived from our audited consolidated financial
statements. On April 20, 1998, we consummated a merger with Continental Homes
Holding Corp., which was treated as a pooling of interests for accounting
purposes. Therefore, all financial amounts have been restated as if we had been
combined throughout the periods presented. The following summary consolidated
financial information for the six months ended March 31, 2002 and 2001, is
derived from our unaudited consolidated financial statements.
The following unaudited summary pro forma combined financial information
gives effect to our acquisition of Schuler. The unaudited pro forma combined
condensed statements of income for the six months ended March 31, 2002 and for
the year ended September 30, 2001, including the pro forma adjustments and
accompanying notes, are incorporated herein by reference to the Form 8-K we
filed with the SEC on May 29, 2002. The unaudited summary pro forma combined
income statement information for the six months ended March 31, 2002, assumes
that the acquisition occurred on October 1, 2001. The unaudited summary pro
forma combined income statement information for the year ended September 30,
2001, assumes the acquisition occurred on October 1, 2000. The financial
information about Schuler included in the pro forma combined information for the
six months ended March 31, 2002 has been derived from the Schuler unaudited
financial statements. The financial information about Schuler included in the
pro forma combined information for the year ended September 30, 2001 has been
derived from the Schuler (and its predecessor) and Western Pacific Housing
unaudited financial statements.
The unaudited summary pro forma combined financial statement information
has been included for comparative purposes only. The unaudited summary pro forma
combined financial statement information does not purport to show what the
operating results would have been if the acquisition had been consummated as of
the dates indicated and should not be construed as representative of a future
operating results.
PRO FORMA
COMBINED
WITH SCHULER
D.R. HORTON FOR THE FISCAL
FOR THE FISCAL YEARS ENDED SEPTEMBER 30, YEAR ENDED
------------------------------------------------------------------ SEPTEMBER 30,
1997 1998 1999 2000 2001 2001
---------- ---------- ---------- ---------- ---------- --------------
(IN MILLIONS, EXCEPT FOR PER SHARE DATA AND NUMBER OF HOMES)
INCOME STATEMENT DATA:
Revenues:
Homebuilding ............... $ 1,567.5 $ 2,155.0 $ 3,119.0 $ 3,604.2 $ 4,383.6 $ 5,924.4
Financial services ......... 11.0 21.9 37.3 49.5 72.0 72.0
Gross profit .................. 274.9 394.9 570.5 663.1 856.4 1,169.0
Income before income taxes:
Homebuilding ............... 105.6 152.0 250.7 294.5 380.8 512.2
Financial services ......... 3.0 7.1 13.1 14.7 27.0 27.0
Cumulative effect of
change in accounting
principle, net of income
taxes(1) ................... -- -- -- -- 2.1 2.1
Net income .................... 65.0 93.4 159.8 191.7 257.0 335.5
Income per share before
cumulative effect of
change in accounting
principle:(2)
Basic(3) ................... $ 0.71 $ 0.96 $ 1.40 $ 1.70 $ 2.25 $ 2.32
Diluted(4) ................. 0.64 0.86 1.38 1.69 2.21 2.29
Cash dividends declared
per common share ........... 0.06 0.09 0.11 0.15 0.19 0.19
Weighted average number
of shares outstanding:(2)
Basic(3) ................... 91.8 96.8 113.9 112.6 113.5 143.6
Diluted(4) ................. 107.7 112.7 116.1 113.6 115.4 145.7
SELECTED OPERATING DATA:
Gross profit margin ........... 17.5% 18.3% 18.3% 18.4% 19.5% 19.7%
Number of homes closed ........ 10,038 13,944 18,395 19,144 21,371 26,625
New sales orders, net
(homes)(5) ................. 10,551 15,952 18,911 19,223 22,179 27,445
New sales orders, net
($ value)(5) ................ $ 1,595.7 $ 2,533.2 $ 3,266.2 $ 3,676.4 $ 4,502.6 $ 6,013.6
Sales backlog at end of
period (homes)(6) .......... 3,961 6,341 7,309 7,388 9,263 11,265
Sales backlog at end of
period ($ value)(6) ....... $ 609.2 $ 1,052.9 $ 1,356.5 $ 1,536.9 $ 1,933.8 $ 2,509.7
PRO FORMA
COMBINED
D.R. HORTON WITH SCHULER
SIX MONTHS FOR THE SIX
ENDED MARCH 31, MONTHS ENDED
------------------------ MARCH 31,
2001 2002 2002
---------- ---------- -------------
(IN MILLIONS, EXCEPT FOR PER SHARE DATA AND NUMBER OF HOMES)
INCOME STATEMENT DATA:
Revenues:
Homebuilding ............... $ 1,766.0 $ 2,711.2 $ 3,286.2
Financial services ......... 28.5 48.8 48.8
Gross profit .................. 349.2 509.3 624.2
Income before income taxes:
Homebuilding ............... 149.7 237.5 282.1
Financial services ......... 9.2 22.3 22.3
Cumulative effect of
change in accounting
principle, net of income
taxes(1) ................... 2.1 -- --
Net income .................... 101.4 162.4 189.2
Income per share before
cumulative effect of
change in accounting
principle:(2)
Basic(3) ................... $ 0.88 $ 1.33 $ 1.30
Diluted(4) ................. 0.86 1.26 1.24
Cash dividends declared
per common share ........... 0.09 0.11 0.11
Weighted average number
of shares outstanding:(2)
Basic(3) ................... 112.8 122.1 145.9
Diluted(4) ................. 114.6 129.4 153.5
SELECTED OPERATING DATA:
Gross profit margin ........... 19.8% 18.8% 19.0%
Number of homes closed ........ 8,620 12,330 14,349
New sales orders, net
(homes)(5) ................. 10,941 13,761 15,890
New sales orders, net
($ value)(5) ................ $ 2,256.1 $ 2,854.9 $ 3,531.0
Sales backlog at end of
period (homes)(6) .......... 9,709 12,398 12,398
Sales backlog at end of
period ($ value)(6) ....... $ 2,083.3 $ 2,663.7 $ 2,663.7
7
D.R. HORTON D.R. HORTON
AS OF SEPTEMBER 30, AS OF MARCH 31,
---------------------------------------------------- -------------------
1997 1998 1999 2000 2001 2001 2002
-------- -------- -------- -------- -------- -------- --------
Balance Sheet Data:
Inventories ............. $1,024.3 $1,358.0 $1,866.1 $2,191.0 $2,804.4 $2,533.0 $4,201.1
Total assets ............ 1,248.3 1,667.8 2,361.8 2,694.6 3,652.2 3,127.0 5,596.7
Notes payable ........... 650.7 854.5 1,190.6 1,344.4 1,884.3 1,691.7 2,896.4
Stockholders' equity .... 427.9 549.4 797.6 969.6 1,250.2 1,072.2 2,038.7
----------
(1) On October 1, 2000, we adopted Statement of Financial Accounting Standards
No. 133, "Accounting for Derivative Instruments and Hedging Activities"
(SFAS #133) as amended by SFAS #137 and #138. Accordingly, the fair market
value of our interest rate swaps, which were not designated as hedges under
SFAS #133, was recorded, net of applicable income taxes, as a cumulative
effect of a change in accounting principle.
(2) Income per share amounts and weighted average number of shares outstanding
have been adjusted as appropriate to reflect the effects of the 9% and 11%
stock dividends of September 2000 and March 2001 and the effect of the
three-for-two stock split, effected as a stock dividend, paid on April 9,
2002.
(3) Basic income per share before cumulative effect of change in accounting
principle is based upon the weighted average number of shares of common
stock outstanding during each year.
(4) Diluted income per share before cumulative effect of change in accounting
principle is based upon the weighted average number of shares of common
stock outstanding during each year, adjusted for the effects of dilutive
securities outstanding.
(5) Represents homes placed under contract during the period, net of
cancellations.
(6) Represents homes under contract but not yet closed at the end of the
period.
8
PER SHARE PRICES AND DIVIDENDS
Our common stock is listed on the New York Stock Exchange under the symbol
"DHI." The following table shows the high and low sales prices for our common
stock for the periods indicated, as reported on the New York Stock Exchange,
adjusted for the 9% stock dividend paid in September 2000, the 11% stock
dividend paid in March 2001 and the three-for-two stock split, effected as a
stock dividend, paid on April 9, 2002. The table also shows cash dividends
declared on our common stock during the periods indicated.
COMMON STOCK
----------------------------------
DIVIDENDS
HIGH LOW DECLARED
------ ------ ---------
Year ended September 30, 2000:
Quarter Ended December 31 ...................... $ 8.57 $ 5.51 $ .03
Quarter Ended March 31 ......................... 7.75 5.99 .04
Quarter Ended June 30 .......................... 8.06 6.71 .04
Quarter Ended September 30 ..................... 11.49 7.57 .04
Year ended September 30, 2001:
Quarter Ended December 31 ...................... 15.61 9.16 .04
Quarter Ended March 31 ......................... 16.21 11.93 .05
Quarter Ended June 30 .......................... 17.33 12.83 .05
Quarter Ended September 30 ..................... 20.00 11.67 .05
Current Year:
Quarter Ended December 31, 2001 ................ 22.33 13.25 .05
Quarter Ended March 31, 2002 ................... 29.17 19.83 .06
Quarter Ending June 30, 2002 (through May 28) .. 27.19 23.06 .06
On May 28, 2002, the closing price per share of our common stock as
reported on the New York Stock Exchange was $25.06. On May 28, 2002, there were
approximately 411 holders of record of our common stock. On April 30, 2002, we
announced a cash dividend of $.06 per share, payable on May 21, 2002 to
stockholders of record on May 14, 2002.
We urge securities holders of businesses to be acquired by us to obtain
current market quotations for our common stock prior to making any decision to
acquire any shares of our common stock.
The declaration of cash dividends is at the discretion of our board of
directors and will depend upon, among other things, future earnings, cash flows,
capital requirements, our general financial condition and general business
conditions. To declare cash dividends, we must comply with covenants contained
in our revolving credit agreement and indentures. The most restrictive of these
covenants allows us to pay cash dividends on common stock in an amount, on a
cumulative basis, not to exceed 50% of consolidated net income, as defined, plus
the proceeds of certain stock issuances and other specified amounts, subject to
adjustments for other payments restricted by the covenant. Under the most
restrictive of these requirements, we had approximately $95.7 million
available for dividends and other restricted payments at March 31, 2002.
9
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock is 200,000,000 shares of common stock, $.01
par value, and 30,000,000 shares of preferred stock, $.10 par value. At May 28,
2002, 146,350,886 shares of common stock and no shares of preferred stock were
outstanding.
PREFERRED STOCK
We may issue preferred stock in series with any rights and preferences that
may be authorized by our board of directors. We will file a certificate with the
State of Delaware with regard to each particular series of preferred stock
authorized by our board of directors in accordance with the corporate laws of
the State of Delaware. Each certificate will establish the designations, powers,
preferences and rights of the series of preferred stock to which it relates and
any qualifications, limitations or restrictions of the series.
COMMON STOCK
Holders of our common stock are entitled to one vote for each share held of
record on all matters submitted to a vote of stockholders. The vote of the
holders of a majority of the stock represented at a meeting at which a quorum is
present is generally required to take stockholder action, unless a greater vote
is required by law. The holders are not entitled to cumulative voting in the
election of directors. Accordingly, the holder or holders of a majority of the
outstanding shares of common stock will be able to elect our entire board of
directors.
Holders of common stock have no preemptive rights. They are entitled to
such dividends as may be declared by our board of directors out of funds legally
available for such purpose. The common stock is not entitled to any sinking
fund, redemption or conversion provisions. On our liquidation, dissolution or
winding up, the holders of common stock are entitled to share ratably in our net
assets remaining after the payment of all creditors and liquidation preferences
of preferred stock, if any. The outstanding shares of common stock are duly
authorized, validly issued, fully paid and nonassessable.
The transfer agent and registrar for the common stock is American Stock
Transfer & Trust Company, New York, New York.
The following provisions in our charter or bylaws may make a takeover of
our company more difficult:
o an article in our charter prohibiting stockholder action by
written consent;
o an article in our charter requiring the affirmative vote of the
holders of two-thirds of the outstanding shares of common stock
to remove a director;
o a bylaw limiting the persons who may call special meetings of
stockholders to our board of directors or a committee authorized
by the board or the bylaws to call a meeting; and
o bylaws providing time limitations for nominations for election to
the board of directors or for proposing matters which can be
acted upon at stockholders' meetings.
These provisions may delay stockholder actions with respect to business
combinations and the election of new members to our board of directors. As such,
the provisions could discourage open market purchases of our common stock
because a stockholder who desires to participate in a business combination or
elect a new director may consider them disadvantageous. Additionally, the
issuance of preferred stock could delay or prevent a change of control or other
corporate action.
As a Delaware corporation, we are subject to Section 203 of the Delaware
General Corporation Law. In general, Section 203 prevents an "interested
stockholder" from engaging in a "business combination" with us for three years
following the date that person became an interested stockholder, unless:
o before that person became an interested stockholder, our board of
directors approved the transaction in which the interested
stockholder became an interested stockholder or approved the
business combination;
o upon completion of the transaction that resulted in the
interested stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of our voting stock
outstanding at the time the transaction commenced, excluding
stock held by persons who are both directors and officers of our
corporation or by certain employee stock plans; or
o on or following the date on which that person became an
interested stockholder, the business combination is approved by
our board of directors and authorized at a meeting of
stockholders by the affirmative vote of the holders of at least
66-2/3% of our outstanding voting stock excluding shares held by
the interested stockholder.
10
An "interested stockholder" is generally a person owning 15% or more of our
outstanding voting stock. A "business combination" includes mergers, asset sales
and other transactions resulting in a financial benefit to the interested
stockholder.
CERTAIN FEDERAL SECURITIES LAWS CONSIDERATIONS
Persons who directly or indirectly control, are controlled by, or are under
common control with, companies or other entities whose assets or securities are
acquired by us, may be deemed to be underwriters of securities within the
meaning of Section 2(11) of the Securities Act of 1933, if these persons offer
or sell any shares covered by this prospectus other than in accordance with the
provisions of paragraph (d) of Rule 145 under the Securities Act of 1933. Rule
145(d) provides that persons will not be deemed to be underwriters if:
o among other things,
(i) we have complied with certain reporting requirements of the
Securities Exchange Act of 1934,
(ii) the amounts of shares sold fall within certain volume
limitations,
(iii) shares are sold only in brokers' transactions within the meaning
of Section 4(4) of the Securities Act of 1933, and
(iv) persons do not solicit or arrange for the solicitation of orders
to buy such shares in anticipation of or in connection with the
offer or sale thereof to any persons other than the brokers
executing the orders to sell such shares;
o the persons are not our affiliates and have been the beneficial owners
of the shares for at least one year, and we have complied with certain
reporting requirements of the Exchange Act; or
o the persons are not, and have not been for at least three months, our
affiliates and have been the beneficial owners of the shares for at
least two years.
LEGAL MATTERS
Gibson, Dunn & Crutcher LLP, Dallas, Texas, will render an opinion with
respect to the validity of the securities being offered by this prospectus. We
have filed the opinion as an exhibit to the registration statement of which this
prospectus is a part.
EXPERTS
The consolidated financial statements of D.R. Horton, Inc. appearing in
D.R. Horton, Inc.'s Annual Report on Form 10-K for the year ended September 30,
2001, and the balance sheet of Schuler Homes, Inc., the consolidated financial
statements of Schuler Residential, Inc. and the combined financial statements of
Western Pacific Housing appearing in Schuler Homes, Inc.'s Annual Report on Form
10-K for the year ended March 31, 2001, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their reports thereon, included therein
and incorporated herein by reference. Such financial statements are incorporated
herein by reference in reliance upon such reports given on the authority of such
firm as experts in accounting and auditing.
With respect to the unaudited condensed consolidated interim financial
information of Schuler Homes, Inc. for the three and nine-month periods ended
December 31, 2001 and 2000, incorporated herein by reference, Ernst & Young LLP
have reported that they have applied limited procedures in accordance with
professional standards for a review of such information. However, their separate
report, included in Schuler Homes, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended December 31, 2001, and incorporated herein by reference, states
that they did not audit and they do not express an opinion on that interim
financial information. Accordingly, the degree of reliance on their report on
such information should be restricted considering the limited nature of the
review procedures applied. The independent auditors are not subject to the
liability provisions of Section 11 of the Securities Act of 1933 for their
report on the unaudited interim financial information because that report is not
a "report" or a "part" of the registration statement prepared or certified by
the auditors within the meaning of Sections 7 and 11 of the Securities Act of
1933.
11
================================================================================
WE HAVE NOT AUTHORIZED ANYONE TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION
ABOUT US THAT IS DIFFERENT FROM, OR IN ADDITION TO, THAT CONTAINED IN THIS
PROSPECTUS OR IN ANY OF THE MATERIALS THAT WE HAVE INCORPORATED BY REFERENCE
INTO THIS DOCUMENT. THEREFORE, IF ANYONE DOES GIVE YOU INFORMATION OF THIS SORT,
YOU SHOULD NOT RELY ON IT. IF YOU ARE IN A JURISDICTION WHERE OFFERS TO SELL, OR
SOLICITATIONS OF OFFERS TO PURCHASE, THE SECURITIES OFFERED BY THIS DOCUMENT ARE
UNLAWFUL, OR IF YOU ARE A PERSON TO WHOM IT IS UNLAWFUL TO DIRECT THESE TYPES OF
ACTIVITIES, THEN THE OFFER PRESENTED IN THIS DOCUMENT DOES NOT EXTEND TO YOU.
THE INFORMATION CONTAINED IN THIS DOCUMENT SPEAKS ONLY AS OF THE DATE OF THIS
DOCUMENT, UNLESS THE INFORMATION SPECIFICALLY INDICATES THAT ANOTHER DATE
APPLIES.
----------
TABLE OF CONTENTS
Where You Can Find More Information................1
Incorporation of Certain Documents by Reference....1
Forward-looking Statements.........................2
The Company........................................2
Acquisition Transactions...........................3
Risk Factors.......................................3
Summary Consolidated and Pro Forma Combined
Financial Information and Operating Data.........7
Per Share Prices and Dividends.....................9
Description of Capital Stock.......................10
Certain Federal Securities Laws Considerations.....11
Legal Matters......................................11
Experts............................................11
================================================================================
================================================================================
----------
D.R. HORTON, INC.
15,000,000 SHARES
COMMON STOCK
PROSPECTUS
__________, 2002
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. 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
Delaware General Corporation Law or other applicable laws presently or hereafter
in effect, indemnify each person who is or was or had 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 Delaware General Corporation Law or other applicable
laws presently or hereafter in effect. The registrant has entered into an
indemnification agreement with each of its directors and executive officers.
Section 145 of the Delaware General Corporation Law 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, had 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 for negligence or misconduct in the performance
of his respective duties 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 the Delaware General Corporation Law 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 (1) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (2) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law, (3)
under section 174 of the Delaware General Corporation Law, or (4) 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 before 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.
II-1
ITEM 21. EXHIBITS AND FINANCIAL SCHEDULES.
(a) Exhibits:
EXHIBIT
NUMBER EXHIBITS
4.1 Amended and Restated Certificate of Incorporation, as
amended, of the registrant (incorporated by reference from
Exhibit 4.2 to the registrant's registration statement
(No. 333-76175) on Form S-3, filed April 13, 1999)
4.2 Amended and Restated Bylaws of the registrant
(incorporated by reference from Exhibit 3.1 to the
registrant's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1998)
5.1 Opinion of Gibson, Dunn & Crutcher LLP, Dallas, Texas, as
to the validity of the securities being registered
15.1 Letter re: Unaudited Interim Financial Information
23.1 Consent of Gibson, Dunn & Crutcher LLP, Dallas, Texas (See
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Fort Worth, Texas
23.3 Consent of Ernst & Young LLP, Los Angeles, California
24.1 Powers of Attorney (see signature page of this
registration statement)
ITEM 22. 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;
(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; and
(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.
(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 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
Securities 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) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and to deliver or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus.
(d) The undersigned registrant hereby undertakes as follows:
II-2
(1) that prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items
of the applicable form.
(2) that every prospectus: (i) that is filed pursuant to paragraph (1)
immediately preceding, or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to
the registration statement and will not be used until such amendment is
effective, and that, for purposes of determining any liability under the
Securities Act of 1933, as amended, 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.
(e) 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 described in Item 20, 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. If 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.
(f) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
(g) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant, D.R.
Horton, Inc., 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 May 29, 2002.
D.R. HORTON, INC.
By: /s/ Samuel R. Fuller
---------------------------------------
Samuel R. Fuller
Executive Vice President, Treasurer and
Chief Financial Officer
II-4
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 J. Tomnitz and Samuel R. Fuller 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.
REGISTRANT OFFICERS AND DIRECTORS
SIGNATURE TITLE DATE
--------- ----- ----
/s/ DONALD R. HORTON Chairman of the Board May 29, 2002
----------------------------------- (Principal Executive Officer)
Donald R. Horton
/s/ DONALD J. TOMNITZ Vice Chairman of the Board, President and May 29, 2002
----------------------------------- Chief Executive Officer
Donald J. Tomnitz
/s/ SAMUEL R. FULLER Executive Vice President, Treasurer, Chief May 29, 2002
----------------------------------- Financial Officer and Director
Samuel R. Fuller (Principal Accounting and Financial Officer)
/s/ BRADLEY S. ANDERSON Director May 29, 2002
-----------------------------------
Bradley S. Anderson
/s/ RICHARD BECKWITT Director May 29, 2002
-----------------------------------
Richard Beckwitt
/s/ RICHARD I. GALLAND Director May 29, 2002
-----------------------------------
Richard I. Galland
/s/ RICHARD L. HORTON Director May 29, 2002
-----------------------------------
Richard L. Horton
/s/ TERRILL J. HORTON Director May 29, 2002
-----------------------------------
Terrill J. Horton
/s/ FRANCINE I. NEFF Director May 29, 2002
-----------------------------------
Francine I. Neff
/s/ JAMES K. SCHULER Director May 29, 2002
-----------------------------------
James K. Schuler
/s/ SCOTT J. STONE Director May 29, 2002
-----------------------------------
Scott J. Stone
II-5
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBITS
------- --------
4.1 Amended and Restated Certificate of Incorporation, as amended,
of the registrant (incorporated by reference from Exhibit 4.2 to
the registrant's registration statement (No. 333-76175) on Form
S-3, filed April 13, 1999)
4.2 Amended and Restated Bylaws of the registrant (incorporated by
reference from Exhibit 3.1 to the registrant's Quarterly Report
on Form 10-Q for the quarter ended December 31, 1998)
5.1 Opinion of Gibson, Dunn & Crutcher LLP, Dallas, Texas, as to the
validity of the securities being registered
15.1 Letter re: Unaudited Interim Financial Information
23.1 Consent of Gibson, Dunn & Crutcher LLP, Dallas, Texas (See
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Fort Worth, Texas
23.3 Consent of Ernst & Young LLP, Los Angeles, California
24.1 Powers of Attorney (see signature page of this registration
statement)