AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 21, 2002
REGISTRATION NO. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------
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 DEFERRED COMPENSATION PLAN
(Full title of the plan)
PAUL W. BUCHSCHACHER
VICE PRESIDENT
AND CORPORATE 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)
----------
CALCULATION OF REGISTRATION FEE
==================================================================================================================
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
--------------------------------------- ------------ -------------- ----------------- ------------
D.R. Horton Deferred Compensation Plan
Obligations(2) $30,000,000 100% $30,000,000 $2,760
==================================================================================================================
(1) Estimated solely for the purpose of calculation of the registration fee
pursuant to Rule 457(o).
(2) The D.R. Horton Deferred Compensation Plan Obligations are unsecured
obligations of D.R. Horton, Inc. to pay deferred compensation in the
future in accordance with the terms of the D.R. Horton Deferred
Compensation Plan.
INTRODUCTION
This Registration Statement on Form S-8 is filed by D.R. Horton, Inc.,
a Delaware corporation (the "Registrant"), relating to up to $ 30,000,000 of
unsecured obligations of the Registrant to pay deferred compensation in the
future (the "Obligations") in accordance with the terms of the D.R. Horton
Deferred Compensation Plan (the "Plan").
PART I
The documents containing the information specified in Part I of Form
S-8 will be sent or given to employees and directors as specified by Rule
428(b)(1). Such documents need not be filed with the Securities and Exchange
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of Form S-8, taken together, constitute 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
The following documents filed by D.R. Horton, Inc. are incorporated by
reference, as of their respective dates, in this Registration Statement:
o Annual Report on Form 10-K for the fiscal year ended September
30, 2001, filed with the Securities and Exchange Commission
(the "Commission") on November 20, 2001;
o Quarterly Report on Form 10-Q for the quarter ended December
31, 2001, filed with the Commission on February 14, 2002;
o Quarterly Report on Form 10-Q for the quarter ended March 31,
2002, filed with the Commission on May 15, 2002;
o Current Report on Form 8-K dated October 22, 2001, filed with
the Commission on October 24, 2001;
o Current Report on Form 8-K dated November 8, 2001, filed with
the Commission on November 8, 2001;
o Current Report on Form 8-K dated January 22, 2002, filed with
the Commission on January 22, 2002;
o Current Report on Form 8-K dated January 24, 2002, filed with
the Commission on January 24, 2002;
o Current Report on Form 8-K dated January 31, 2002, filed with
the Commission on February 1, 2002;
o Current Report on Form 8-K dated February 15, 2002, filed with
the Commission on February 19, 2002;
o Current Report on Form 8-K dated February 21, 2002, filed with
the Commission on February 22, 2002 (including amendment filed
March 25, 2002);
o Current Report on Form 8-K dated April 3, 2002, filed with the
Commission on April 3, 2002; and
o Current Report on Form 8-K dated May 29, 2002, filed with the
Commission on May 29, 2002.
2
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, 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 4. DESCRIPTION OF SECURITIES
Up to $30,000,000 of Plan Obligations are being registered under this
Registration Statement to be offered to certain eligible employees and
nonemployee directors of the Registrant pursuant to the Plan. The Obligations
are general unsecured obligations of the Registrant to pay deferred compensation
in the future in accordance with the terms of the Plan from the general assets
of the Registrant, and rank pari passu with other unsecured and unsubordinated
indebtedness of the Registrant from time to time.
Obligations will consist of amounts equal to each Plan participant's
deferral account, which will be credited with the compensation each participant
defers in accordance with the terms of the Plan. A participant may defer up to
90% of his or her salary and up to 100% of his or her incentive and other
compensation. A participant's deferrals will be credited with earnings (or
losses) based on the deemed investment of such amounts in one or more funds
offered under the Plan and selected by the participant.
The vested accrued balance in a participant's account under the Plan
shall be paid in cash at either (i) a future year specified by the participant
(which is at least two years after the year the compensation is deferred) while
he or she is still employed by the Registrant, or (ii) upon the participant's
termination of employment, death or disability. Participants terminating
employment when at or over age 50 with ten or more years of service may elect to
receive distributions in a single lump sum or annual installment payments over a
period of two to ten years. In addition, with the consent of the committee
appointed to administer the Plan, a participant may receive all or a portion of
his or her account while the participant is still employed upon paying a 10%
penalty, or, with no penalty, on account of severe financial hardship.
A participant's Obligations cannot be alienated, sold, transferred,
assigned, pledged, attached or otherwise encumbered by the participant, and pass
only to a survivor beneficiary under the Plan, or by the laws of descent and
distribution.
The Obligations are not subject to redemption, in whole or in part,
prior to the payout to the participant. However, the Registrant reserves the
right to amend or terminate the Plan at any time, except that no such amendment
or termination shall adversely affect a participant's right to Obligations in
the amount of the participant's vested Plan account as of the date of such
amendment or termination without the participant's consent.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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.
3
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 7. EXEMPTIONS FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER EXHIBIT
4.1 - D.R. Horton Deferred Compensation Plan
5.1 - Opinion of Gibson, Dunn & Crutcher LLP, Dallas, Texas.
23.1 - Consent of Gibson, Dunn & Crutcher LLP, Dallas, Texas (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 (contained on signature page hereto)
----------------
(1) See Exhibit 5.1 of this Registration Statement.
ITEM 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement: (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933
(the "Securities Act"), (ii) to reflect in the prospectus any facts or
events arising after the effective date of this 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 this Registration Statement, and (iii) 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, provided, however, that clauses
(i) and (ii) do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") that are incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective
4
amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
5
SIGNATURES AND POWERS OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, D.R. Horton,
Inc. 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 June 21, 2002.
D.R. HORTON, INC.
By: /s/ Donald R. Horton
-------------------------------------
Donald R. Horton
Chairman of the Board
S-1
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.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Donald R. Horton Chairman of the Board June 21, 2002
------------------------------------ (Principal Executive Officer)
Donald R. Horton
/s/ Donald J. Tomnitz Vice Chairman of the Board, President, Chief June 21, 2002
------------------------------------ Executive Officer and Director
Donald J. Tomnitz
/s/ Samuel R. Fuller Executive Vice President, Treasurer, Chief June 21, 2002
------------------------------------ Financial Officer and Director
Samuel R. Fuller (Principal Accounting and Financial Officer)
/s/ Bradley S. Anderson Director June 21, 2002
------------------------------------
Bradley S. Anderson
/s/ Richard Beckwitt Director June 21, 2002
------------------------------------
Richard Beckwitt
/s/ Richard I. Galland Director June 21, 2002
------------------------------------
Richard I. Galland
/s/ Richard L. Horton Director June 21, 2002
------------------------------------
Richard L. Horton
/s/ Terrill J. Horton Director June 21, 2002
------------------------------------
Terrill J. Horton
/s/ Francine I. Neff Director June 21, 2002
------------------------------------
Francine I. Neff
/s/ James K. Schuler Director June 21, 2002
------------------------------------
James K. Schuler
/s/ Scott J. Stone Director June 21, 2002
------------------------------------
Scott J. Stone
S-2
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT
------- -------
4.1 - D.R. Horton Deferred Compensation Plan
5.1 - Opinion of Gibson, Dunn & Crutcher LLP, Dallas, Texas
23.1 - Consent of Gibson, Dunn & Crutcher LLP, Dallas, Texas (contained
in 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 (contained on signature page hereto)