-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VR7e0C9op8/mmuWI5yfSCnCCBBc2KIul4gmoj4R7hdhdK0krp6aV5XMDzo2luOVs U+3GDutwbLE6YXdgKr9rxA== 0000930661-98-000851.txt : 19980421 0000930661-98-000851.hdr.sgml : 19980421 ACCESSION NUMBER: 0000930661-98-000851 CONFORMED SUBMISSION TYPE: POS EX PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980420 EFFECTIVENESS DATE: 19980420 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: HORTON D R INC /DE/ CENTRAL INDEX KEY: 0000882184 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 752386963 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: POS EX SEC ACT: SEC FILE NUMBER: 333-44279 FILM NUMBER: 98597350 BUSINESS ADDRESS: STREET 1: 1901 ASCENSION BLVD STREET 2: STE 100 CITY: ARLINGTON STATE: TX ZIP: 76006 BUSINESS PHONE: 8178568200 POS EX 1 POST EFFECTIVE AMENDMENT #1 TO FORM S-4 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 20, 1998 Registration Statement No. 333-44279 =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- POST-EFFECTIVE AMENDMENT NO. 1 TO 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 (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER) 1901 ASCENSION BLVD., SUITE 100 ARLINGTON, TEXAS 76006 (817) 856-8200
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) CHARLES N. WARREN, ESQ. SENIOR VICE PRESIDENT AND GENERAL COUNSEL D.R. HORTON, INC. 1901 ASCENSION BLVD., SUITE 100 ARLINGTON, TEXAS 76006 (817) 856-8200 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service) COPIES OF COMMUNICATION TO: IRWIN F. SENTILLES, III, ESQ. GIBSON, DUNN & CRUTCHER LLP 1717 MAIN STREET, SUITE 5400 DALLAS, TEXAS 75201 (214) 698-3100 ---------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the effective date of this Registration Statement and the effective time of the merger (the "Merger") of Continental Homes Holding Corp., a Delaware corporation ("Continental"), with and into D.R. Horton, Inc., a Delaware corporation ("Horton"), as described in the Agreement and Plan of Merger, dated as of December 18, 1997 (the "Merger Agreement"), between Horton and Continental attached as Appendix A to the Proxy Statement/Prospectus forming part of this Registration Statement. 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. THIS POST-EFFECTIVE AMENDMENT SHALL BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(C) OF THE SECURITIES ACT OF 1933 OR ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(C), MAY DETERMINE. ================================================================================ This Post-Effective Amendment No. 1 to Form S-4 Registration Statement (Registration No. 333-44279) of D.R. Horton, Inc. is being filed pursuant to Rule 462(d) solely to add exhibits to Amendment No. 3 to Form S-4 Registration Statement that became effective on March 16, 1998. PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. (a) EXHIBITS: EXHIBIT NUMBER EXHIBITS ------- -------- 2.1 Agreement and Plan of Merger, dated as of December 18, 1997, by and between D.R. Horton, Inc. and Continental Homes Holding Corp. (included in Joint Proxy Statement/Prospectus as Appendix A). The Registrant agrees to furnish supplementally a copy of omitted schedules to the Commission upon request. 3.1 Amended and Restated Certificate of Incorporation, as amended(1) 3.2 Amended and Restated Bylaws(2) 4.1 See Exhibits 3.1 and 3.2 4.2 Indenture, dated as of June 9, 1997, among Horton., the Guarantors named therein and American Stock Transfer & Trust Company, as Trustee(3) 4.3 First Supplemental Indenture, dated as of June 9, 1997, among Horton, the Guarantors named therein and American Stock Transfer & Trust Company, as Trustee(4) 4.4 Second Supplemental Indenture, dated as of September 30, 1997, among Horton, the Guarantors named therein and American Stock Transfer & Trust Company, as Trustee(7) 5.1 Opinion of Gibson, Dunn & Crutcher LLP *8.1 Tax Opinion of Gibson, Dunn & Crutcher LLP *8.2 Tax Opinion of Cahill Gordon & Reindel 10.1 Master Loan and Inter-Creditor Agreement, dated as of December 19, 1997, among D.R. Horton, Inc., as Borrower, NationsBank, N.A., Bank of America National Trust and Savings Association, Fleet National Bank, Bank United, Comerica Bank, The First National Bank of Chicago, Credit Lyonnais New York Branch, PNC Bank, National Association, Amsouth Bank of Alabama, Bank One, Arizona, NA, Societe Generale, Southwest Agency, First American Bank Texas, SSB, Harris Trust and Savings Bank, and Sanwa Bank California as Banks; and NationsBank, N.A., as Administrative Agent(6). 10.2 Restated Working Capital Line of Credit Agreement dated as of July 15, 1997, by and between D.R. Horton, Inc., as Borrower, and Barnett Bank, N.A., as Lender(5) 10.3 Noncompetition Agreement (Amendment No. 1 to Employment Agreement), dated as of December 18, 1997, by and between W. Thomas Hickcox and Continental Homes Holding Corp. 10.4 Noncompetition Agreement (Amendment No. 1 to Employment Agreement), dated as of December 18, 1997, by and between Bruce F. Dickson and Continental Homes Holding Corp. 11.1 Statement re computation of per share earnings. 12.1 Computations of ratio of earnings to fixed charges for D.R. Horton, Inc., Continental Homes Holding Corp. and the combined company. 23.1 Consent of Ernst & Young LLP 23.2 Consent of Arthur Andersen LLP 23.3 Consent of Whittington, McLemore, Land, Davis & White 23.4 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibits 5.1 and 8.1) 23.5 Consent of Cahill Gordon & Reindel (included in Exhibit 8.2) 24.1 Powers of Attorney (included in Part II of the Registration Statement). II-1 EXHIBIT NUMBER EXHIBITS ------- -------- 99.1 Consent of Donaldson, Lufkin & Jenrette Securities Corporation 99.2 Consent of Salomon Smith Barney 99.3 Consent of Morgan Stanley & Co. Incorporated - ------------ * Filed herewith (1) Incorporated by reference from Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1995, filed with the Commission on November 22, 1995. (2) Incorporated by reference from Exhibit 3.1 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997, filed with the Commission on May 14, 1997. (3) Incorporated by reference from Exhibit 4.1(a) to the Registrant's Registration Statement on Form S-3 (No. 333-27521), filed with the Commission on May 21, 1997. (4) Incorporated by reference from Exhibit 4.1 to the Registrant's Form 8-K/dated April 1, 1997, filed with the Commission on June 9, 1997. (5) Incorporated by reference to Exhibit 10.18 to the Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1997, filed with the Commission on December 8, 1997. (6) Incorporated herein by reference from Exhibit 10.1 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended December 31, 1997, filed with the Commission on January 27, 1998. (7) Incorporated by reference to Exhibit 4.4 to the Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1997, filed with the Commission on December 8, 1997. II-2 SIGNATURES AND POWERS OF ATTORNEY PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT HAS DULY CAUSED THIS POST-EFFECTIVE AMENDMENT NO. 1 TO ITS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF ARLINGTON, STATE OF TEXAS, ON APRIL 20, 1998. D.R. Horton, Inc By: /s/ DONALD R. HORTON ------------------------------------- DONALD R. HORTON CHAIRMAN OF THE BOARD AND PRESIDENT PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS POST- EFFECTIVE AMENDMENT NO. 1 TO 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 and April 20, 1998 - ------------------------------ President (Principal DONALD R. HORTON Executive Officer) /s/ RICHARD BECKWITT Director April 20, 1998 - ------------------------------ RICHARD BECKWITT /s/ RICHARD I. GALLAND Director April 20, 1998 - ------------------------------ RICHARD I. GALLAND /s/ RICHARD L. HORTON Director April 20, 1998 - ------------------------------ RICHARD L. HORTON /s/ TERRILL J. HORTON Director April 20, 1998 - ------------------------------ TERRILL J. HORTON /s/ DAVID J. KELLER Treasurer, Chief Financial April 20, 1998 - ------------------------------ Officer and Director DAVID J. KELLER (Principal Accounting and Financial Officer) /s/ FRANCINE I. NEFF Director April 20, 1998 - ------------------------------ FRANCINE I. NEFF /s/ SCOTT J. STONE Director April 20, 1998 - ------------------------------ SCOTT J. STONE /s/ DONALD J. TOMNITZ Director April 20, 1998 - ------------------------------ DONALD J. TOMNITZ
II-3 Director - ------------------------------ W. THOMAS HICKCOX Director - ------------------------------ BRADLEY S. ANDERSON
II-4 EXHIBIT INDEX EXHIBIT NUMBER EXHIBITS ------- -------- 2.1 Agreement and Plan of Merger, dated as of December 18, 1997, by and between D.R. Horton, Inc. and Continental Homes Holding Corp. (included in Joint Proxy Statement/Prospectus as Appendix A). The Registrant agrees to furnish supplementally a copy of omitted schedules to the Commission upon request. 3.1 Amended and Restated Certificate of Incorporation, as amended(1) 3.2 Amended and Restated Bylaws(2) 4.1 See Exhibits 3.1 and 3.2 4.2 Indenture, dated as of June 9, 1997, among Horton., the Guarantors named therein and American Stock Transfer & Trust Company, as Trustee(3) 4.3 First Supplemental Indenture, dated as of June 9, 1997, among Horton, the Guarantors named therein and American Stock Transfer & Trust Company, as Trustee(4) 4.4 Second Supplemental Indenture, dated as of September 30, 1997, among Horton, the Guarantors named therein and American Stock Transfer & Trust Company, as Trustee(7) 5.1 Opinion of Gibson, Dunn & Crutcher LLP *8.1 Tax Opinion of Gibson, Dunn & Crutcher LLP *8.2 Tax Opinion of Cahill Gordon & Reindel 10.1 Master Loan and Inter-Creditor Agreement, dated as of December 19, 1997, among D.R. Horton, Inc., as Borrower, NationsBank, N.A., Bank of America National Trust and Savings Association, Fleet National Bank, Bank United, Comerica Bank, The First National Bank of Chicago, Credit Lyonnais New York Branch, PNC Bank, National Association, Amsouth Bank of Alabama, Bank One, Arizona, NA, Societe Generale, Southwest Agency, First American Bank Texas, SSB, Harris Trust and Savings Bank, and Sanwa Bank California as Banks; and NationsBank, N.A., as Administrative Agent(6). 10.2 Restated Working Capital Line of Credit Agreement dated as of July 15, 1997, by and between D.R. Horton, Inc., as Borrower, and Barnett Bank, N.A., as Lender(5) 10.3 Noncompetition Agreement (Amendment No. 1 to Employment Agreement), dated as of December 18, 1997, by and between W. Thomas Hickcox and Continental Homes Holding Corp. 10.4 Noncompetition Agreement (Amendment No. 1 to Employment Agreement), dated as of December 18, 1997, by and between Bruce F. Dickson and Continental Homes Holding Corp. 11.1 Statement re computation of per share earnings. 12.1 Computations of ratio of earnings to fixed charges for D.R. Horton, Inc., Continental Homes Holding Corp. and the combined company. 23.1 Consent of Ernst & Young LLP 23.2 Consent of Arthur Andersen LLP 23.3 Consent of Whittington, McLemore, Land, Davis & White 23.4 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibits 5.1 and 8.1) 23.5 Consent of Cahill Gordon & Reindel (included in Exhibit 8.2) 24.1 Powers of Attorney (included in Part II of the Registration Statement). 99.1 Consent of Donaldson, Lufkin & Jenrette Securities Corporation 99.2 Consent of Salomon Smith Barney 99.3 Consent of Morgan Stanley & Co. Incorporated - ------------ * Filed herewith (1) Incorporated by reference from Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1995, filed with the Commission on November 22, 1995. (2) Incorporated by reference from Exhibit 3.1 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997, filed with the Commission on May 14, 1997. (3) Incorporated by reference from Exhibit 4.1(a) to the Registrant's Registration Statement on Form S-3 (No. 333-27521), filed with the Commission on May 21, 1997. (4) Incorporated by reference from Exhibit 4.1 to the Registrant's Form 8-K/dated April 1, 1997, filed with the Commission on June 9, 1997. (5) Incorporated by reference to Exhibit 10.18 to the Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1997, filed with the Commission on December 8, 1997. (6) Incorporated herein by reference from Exhibit 10.1 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended December 31, 1997, filed with the Commission on January 27, 1998. (7) Incorporated by reference to Exhibit 4.4 to the Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1997, filed with the Commission on December 8, 1997. EX-8.1 2 TAX OPINION OF GIBSON, DUNN & CRUTCHER LLP EXHIBIT 8.1 [LETTERHEAD OF GIBSON, DUNN & CRUTCHER LLP] April 20, 1998 D.R. Horton, Inc. 1901 Ascension Boulevard Suite 100 Arlington, Texas 76006 Re: Amendment No. 3 on Form S-4 to the Registration Statement of D.R. Horton, Inc. Ladies and Gentlemen: You have requested our opinion regarding certain federal income tax consequences of the proposed merger (the "Merger") of Continental Homes Holding Corp., a Delaware corporation (the "Company"), with and into D.R. Horton, Inc., a Delaware corporation ("Horton"). The Merger will be effected pursuant to the terms and conditions of the Agreement and Plan of Merger, dated as of December 18, 1997, between Horton and the Company (the "Merger Agreement"). The Merger Agreement is attached as Appendix A to Amendment No. 3 on Form S-4 to the Registration Statement of D.R. Horton, Inc. (File No. 333-44279), filed on February 23, 1998, with the Securities and Exchange Commission in connection with the Merger (the "Amended Registration Statement"). Defined terms used and not otherwise defined herein have the meanings ascribed to them in the Merger Agreement. In formulating our opinion, we have examined the Merger Agreement, the Joint Proxy Statement/Prospectus of Horton and the Company that is included in the Amended Registration Statement (the "Prospectus"), and such other documents as we deemed necessary or appropriate, and have, with your permission, relied upon, and assumed as correct now and as of the Effective Time, (i) the accuracy of the statements and facts concerning the Merger set forth in the Merger Agreement and the Prospectus, (ii) that the Merger will be consummated in the manner contemplated by, and in accordance with, the terms set forth in the Merger Agreement and the Prospectus, and (iii) the accuracy of (a) the representations made to us by Horton, which are set forth in an officer's certificate delivered to us by Horton, dated April 20, 1998; and (b) the representations made to us by the Company, which are set forth in an officer's certificate delivered to us by the Company, dated April 20, 1998. Based upon the facts and statements set forth above, our examination and review of the documents referred to above, and subject to the assumptions set forth above, we are of the opinion that: 1. The Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"). 2. Horton and the Company each will be treated as a party to a reorganization within the meaning of Section 368(b) of the Code. 3. Under Code Section 354(a)(1), no gain or loss will be recognized by the holders of Company Shares upon the receipt of shares of DRHI Common Stock in exchange for Company Shares, except that a stockholder who receives cash in lieu of a fractional share interest in DRHI Common Stock will recognize gain or loss equal to the difference between such cash and the basis allocated to the fractional share interest. Furthermore, the discussion under the caption "Certain Federal Income Tax Consequences" in the Amended Registration Statement accurately describes the foregoing opinion and the material federal income tax consequences of the Merger. We express no opinion concerning any tax consequences of the Merger other than those specifically set forth or referred to herein. Our opinion is based on current provisions of the Code, the Treasury Regulations promulgated thereunder, published pronouncements of the Internal Revenue Service, and case law, any of which may be changed at any time with retroactive effect. Any change in applicable laws or the facts and circumstances surrounding the Merger, or any inaccuracy in the statements, facts, assumptions and representations on which we relied, may affect the continuing validity of the opinion set forth herein. We assume no responsibility to inform you of any such change or inaccuracy that may occur or come to our attention. We hereby consent to the filing of this opinion as an exhibit to the Amended Registration Statement and further consent to the use of our name under the caption "Certain Federal Income Tax Consequences" in the Amended Registration Statement. In giving this consent, we do not admit we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder Very truly yours, /s/ Gibson, Dunn & Crutcher, LLP GIBSON, DUNN & CRUTCHER, LLP EX-8.2 3 TAX OPINION OF CAHILL GORDON & REINDEL EXHIBIT 8.2 [LETTERHEAD OF CAHILL GORDON & REINDEL] April 20, 1998 Continental Homes Holding Corp. 7001 N. Scottsdale Road Suite 2050 Scottsdale, Arizona 85253 Ladies and Gentlemen: We have acted as counsel to Continental Homes Holding Corp., a Delaware corporation (the "Company"), in connection with the merger (the "Merger") of the Company with and into D.R. Horton, Inc., a Delaware corporation ("Horton"), pursuant to the Agreement and Plan of Merger between the Company and Horton, dated as of December 18, 1997 (the "Merger Agreement"). Any capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Merger Agreement or, if not defined therein, in the Joint Proxy Statement/Prospectus (the "Proxy Statement/Prospectus") that was included in Amendment No. 1 to the Registration Statement on Form S-4 (the "Amended Registration Statement"), Registration No. 333-44279, covering the registration of DRHI Common Stock under the Securities Act of 1933, as amended (the "Act"), as filed by Horton with the Securities and Exchange Commission on February 23, 1998. For purposes of this opinion, we have relied, with your consent, upon the accuracy and completeness of the statements and representations contained in (i) an Officer's Certificate of each of the Company and Horton, dated the date hereof, (ii) the Merger Agreement and (iii) the Proxy Statement/Prospectus, which statements and representations we have not verified. We have also assumed that the Merger will be consummated in accordance with the Merger Agreement and as described in the Proxy Statement/Prospectus. Based upon and subject to the forgoing, we are of the opinion that, for federal income tax purposes, the Merger will constitute a tax-free reorganization within the meaning of Section 354(a)(1) and Section 368(a) of the Internal Revenue Code of 1986, as amended (except with respect to cash received in lieu of fractional shares). In addition, the discussion under the caption "Certain Federal Income Tax Consequences" in the Proxy Statement/Prospectus accurately describes the foregoing opinion and the material federal income tax consequences of the Merger. We express no opinion concerning any tax consequences of the Merger other than those specifically set forth or referred to herein. We hereby consent to the reference to our firm in the Proxy Statement/Prospectus under the caption "Certain Federal Income Tax Consequences" and to the inclusion of this opinion as an exhibit to the Amended Registration Statement. Our consent to such reference does not constitute a consent under Section 7 of the Act, as in consenting to such reference we have not certified any part of the Amended Registration Statement and do not otherwise come within the categories of persons whose consent is required under Section 7 or under the rules of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Cahill Gordon & Reindel 2 -----END PRIVACY-ENHANCED MESSAGE-----