8-A12B
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
D.R. HORTON, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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75-2386963 |
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(State of incorporation or organization)
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(I.R.S. Employer |
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Identification no.) |
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301 Commerce Street |
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Suite 500, Fort Worth, Texas
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76102 |
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(Address of principal executive offices)
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(Zip Code) |
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If this form relates to the
registration of securities pursuant
to Section 12(b) of the Exchange Act
and is effective pursuant to General
Instruction A.(c), please check the
following box. þ
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If this form relates to the
registration of securities pursuant
to Section 12(g) of the Exchange Act
and is effective pursuant to General
Instruction A.(d), please check the
following box. o |
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Securities Act registration statement file number to which this form relates: |
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Not Applicable |
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(if applicable) |
Securities to be registered pursuant to Section 12(b) of the Act:
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Title of each class to be so registered
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Name of each exchange on which each class is to be registered |
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Rights to Purchase Series A Junior
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New York Stock Exchange |
Participating Preferred Stock |
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Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
D.R. HORTON, INC.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrants Securities to be Registered.
On August 19, 2009, the Board of Directors (the Board) of D.R. Horton, Inc. (the
Company) declared a dividend of one preferred share purchase right (each, a
Right) for each outstanding share of common stock, par value $0.01, of the Company. The
dividend is payable on August 31, 2009 to stockholders of record as of the close of business on
August 31, 2009.
The following is a summary description of the Rights. This summary is intended to provide a
general description only and is subject to the detailed terms and conditions of the Section 382
Rights Agreement, dated as of August 19, 2009, between the Company and American Stock Transfer &
Trust Company, LLC, as Rights Agent (the Rights Agreement), a copy of which is attached
hereto as Exhibit 4.1, which is incorporated herein by reference. All capitalized terms used
herein but not defined herein shall have the meanings ascribed to such terms in the Rights
Agreement.
The Board adopted the Rights Agreement in an effort to protect stockholder value by attempting
to diminish the risk that the Companys ability to use its net operating losses and unrealized
losses (collectively, the NOLs) to reduce potential future federal income tax obligations
may become substantially limited. The Company has experienced and continues to experience
substantial operating losses, including realized losses for tax purposes from sales of inventory
and land previously written down for financial statement purposes, which would produce NOLs. Under
the Internal Revenue Code and regulations promulgated by the U.S. Treasury Department, these NOLs
may be carried forward in certain circumstances to offset any current and future taxable income
and thus reduce federal income tax liability, subject to certain requirements and restrictions. To
the extent that the NOLs do not otherwise become limited, the Company believes that it will be able
to carry forward a significant amount of NOLs, and therefore these NOLs could be a substantial
asset to the Company. However, if the Company experiences an ownership change, as defined in
Section 382 of the Internal Revenue Code, its ability to use the NOLs, including NOLs later arising
from sales of land and inventory previously written down, may be substantially limited, and the
timing of the usage of the NOLs could be substantially delayed, which could therefore significantly
impair the value of that asset. A company experiences an ownership change for tax purposes if
the percentage of stock owned by its 5% stockholders (as defined for tax purposes) increases by
more than 50 percentage points over a rolling three-year period.
The Rights Agreement is intended to act as a deterrent to any person acquiring beneficial
ownership of 4.9% or more of the Companys outstanding common stock within the meaning of the
Internal Revenue Code and the regulations promulgated thereunder without the approval of the Board.
Stockholders who beneficially own 4.9% or more of the Companys outstanding common stock as of the
close of business on August 19, 2009 will not trigger the Rights Agreement so long as they do not
acquire any additional shares of the Companys common stock at a time when they still beneficially
own 4.9% or more of the Companys outstanding common
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stock. The Board may, in its sole discretion, also exempt any person from triggering the
Rights Agreement.
The Rights. The Board authorized the issuance of one Right per each outstanding share of the
Companys common stock payable to the Companys stockholders of record as of the close of business
on August 31, 2009. One Right will also be issued together with each share of the Companys common
stock issued after August 31, 2009 but before the Distribution Date (as defined below) and, in
certain circumstances, after the Distribution Date. Subject to the terms, provisions and
conditions of the Rights Agreement, if the Rights become exercisable, each Right would initially
represent the right to purchase from the Company one ten-thousandth of a share of Series A Junior
Participating Preferred Stock, par value $0.10 per share, of the Company (the Series A
Preferred Stock) for a purchase price of $80.00 (the Purchase Price). If issued,
each fractional share of Series A Preferred Stock would give the stockholder approximately the same
dividend, voting and liquidation rights as does one share of the Companys common stock. However,
prior to exercise, a Right does not give its holder any rights as a stockholder of the Company,
including, without limitation, any dividend, voting or liquidation rights.
Initial Exercisability. The Rights will not be exercisable until the earlier of (i) ten
business days after a public announcement that a person has become an Acquiring Person by
acquiring beneficial ownership of 4.9% or more of the Companys outstanding common stock (or, in
the case of a person that had beneficial ownership of 4.9% or more of the Companys outstanding
common stock as of the close of business on August 19, 2009, by obtaining beneficial ownership of
any additional shares of the Companys common stock) and (ii) ten business days (or such later date
as may be specified by the Board prior to such time as any person becomes an Acquiring Person)
after the commencement of a tender or exchange offer by or on behalf of a person that, if
completed, would result in such person becoming an Acquiring Person.
The date that the Rights become exercisable is referred to as the Distribution Date.
Until the Distribution Date, the common stock certificates or the ownership statements issued with
respect to uncertificated shares of common stock of the Company will evidence the Rights. Any
transfer of shares of common stock prior to the Distribution Date will also constitute a transfer
of the associated Rights. After the Distribution Date, separate rights certificates will be issued
and the Rights may be transferred other than in connection with the transfer of the underlying
shares of common stock unless and until the Board has determined to effect an exchange pursuant to
the Rights Agreement (as described below).
Flip-In Event. In the event that a person becomes an Acquiring Person, each holder of a
Right, other than Rights that are or, under certain circumstances, were beneficially owned by the
Acquiring Person (which will thereupon become void), will thereafter have the right to receive upon
exercise of a Right and payment of the Purchase Price, a number of shares of the Companys common
stock having a market value of two times the Purchase Price. However, Rights are not exercisable
following the occurrence of a person becoming an Acquiring Person until such time as the Rights are
no longer redeemable by the Company (as described below).
Redemption. At any time until ten calendar days following the Stock Acquisition Date, the
Board may redeem the Rights in whole, but not in part, at a price of $0.00001 per Right (the
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Redemption Price). The redemption of the Rights may be made effective at such time,
on such basis and with such conditions as the Board in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the Redemption Price.
Exchange. At any time after a person becomes an Acquiring Person, the Board may exchange the
Rights (other than Rights that have become void), in whole or in part, at an exchange ratio of one
share of common stock, or a fractional share of Series A Preferred Stock (or of a share of a
similar class or series of the Companys preferred stock having similar rights, preferences and
privileges) of equivalent value, per Right (subject to adjustment). Immediately upon an exchange
of any Rights, the right to exercise such Rights will terminate and the only right of the holders
of Rights will be to receive the number of shares of common stock (or fractional share of Series A
Preferred Stock or of a share of a similar class or series of the Companys preferred stock having
similar rights, preferences and privileges) equal to the number of such Rights held by such holder
multiplied by the exchange ratio.
Stockholder Approval. The Company intends to submit the Rights Agreement for stockholder
approval at a meeting of stockholders of the Company.
Expiration. The Rights and the Rights Agreement will expire on the earliest of (i) August 19,
2019, (ii) the time at which the Rights are redeemed pursuant to the Rights Agreement, (iii) the
time at which the Rights are exchanged in full pursuant to the Rights Agreement, (iv) the effective
date of the repeal of Section 382 of the Internal Revenue Code, or any successor provision or
replacement provision, if the Board determines that the Rights Agreement is no longer necessary for
the preservation of Tax Benefits, (v) the beginning of a taxable year of the Company for which the
Board determines that the Company has or will have no Tax Benefits and (vi) August 19, 2010 if
stockholder approval of the Rights Agreement has not been obtained.
Anti-Dilution Provisions. The Board may adjust the Purchase Price, the number of shares of
Series A Preferred Stock or other securities or assets issuable and the number of outstanding
Rights to prevent dilution that may occur as a result of certain events, including among others, a
stock dividend, a stock split or a reclassification of the Series A Preferred Stock or the
Companys common stock. With certain exceptions, no adjustments to the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase Price.
Amendments. For so long as the Rights are redeemable, the Board may supplement or amend any
provision of the Rights Agreement in any respect without the approval of the holders of the Rights.
From and after the time the Rights are no longer redeemable, the Board may supplement or amend the
Rights Agreement only to cure an ambiguity, to alter time period provisions, to correct
inconsistent provisions, or to make any additional changes to the Rights Agreement which the
Company may deem necessary or desirable, but only to the extent that those changes do not impair or
adversely affect any Rights holder (other than an Acquiring Person or any Affiliate or Associate of
an Acquiring Person or certain of their transferees) and do not result in the Rights again becoming
redeemable or the Rights Agreement again becoming amendable other than in accordance with this
sentence.
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Item 2. Exhibits.
The following exhibits are filed as a part of this Registration Statement:
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Exhibit No. |
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Description |
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3.1
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Certificate of Designation, Preferences, and Rights of Series
A Junior Participating Preferred Stock of D.R. Horton, Inc.
(filed herewith). |
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3.2
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Certificate of Amendment of the Amended and Restated
Certificate of Incorporation, as amended, of D.R. Horton,
Inc., dated January 31, 2006, and the Amended and Restated
Certificate of Incorporation, as amended, of D.R. Horton,
Inc., dated March 18, 1992 (incorporated by reference from
Exhibit 3.1 to D.R. Horton, Inc.s Quarterly Report on Form
10-Q for the quarterly period ended December 31, 2005, filed
with the SEC on February 2, 2006 (File No. 001-14122)). |
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3.3
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Amended and Restated Bylaws of D.R. Horton, Inc. (incorporated
by reference from Exhibit 3.1 to D.R. Horton, Inc.s Current
Report on Form 8-K, filed with the SEC on August 5, 2009 (File
No. 001-14122)). |
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4.1
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Section 382 Rights Agreement, dated as of August 19, 2009,
between D.R. Horton, Inc. and American Stock Transfer & Trust
Company, LLC, as Rights Agent, which includes as Exhibit B the
Form of Rights Certificate (filed herewith). |
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the
registrant has duly caused this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
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D.R. HORTON, INC.
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/s/ Bill W. Wheat
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Bill W. Wheat |
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Executive Vice President and
Chief Financial Officer |
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Date: August 20, 2009
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EXHIBIT INDEX
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Exhibit No. |
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Description |
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3.1
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Certificate of Designation, Preferences, and Rights of Series
A Junior Participating Preferred Stock of D.R. Horton, Inc.
(filed herewith). |
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3.2
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Certificate of Amendment of the Amended and Restated
Certificate of Incorporation, as amended, of D.R. Horton,
Inc., dated January 31, 2006, and the Amended and Restated
Certificate of Incorporation, as amended, of D.R. Horton,
Inc., dated March 18, 1992 (incorporated by reference from
Exhibit 3.1 to D.R. Horton, Inc.s Quarterly Report on Form
10-Q for the quarterly period ended December 31, 2005, filed
with the SEC on February 2, 2006 (File No. 001-14122)). |
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3.3
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Amended and Restated Bylaws of D.R. Horton, Inc. (incorporated
by reference from Exhibit 3.1 to D.R. Horton, Inc.s Current
Report on Form 8-K, filed with the SEC on August 5, 2009 (File
No. 001-14122)). |
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4.1
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Section 382 Rights Agreement, dated as of August 19, 2009,
between D.R. Horton, Inc. and American Stock Transfer & Trust
Company, LLC, as Rights Agent, which includes as Exhibit B the
Form of Rights Certificate (filed herewith). |
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