AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 9, 2002
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TECHNICAL OLYMPIC USA, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 76-0460831
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4000 HOLLYWOOD BLVD., SUITE 500N
HOLLYWOOD, FLORIDA 33021
(Address of principal executive offices, including zip code)
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TECHNICAL OLYMPIC USA, INC.
ANNUAL AND LONG-TERM INCENTIVE PLAN
(Full title of the plan)
HOLLY HUBENAK
VICE PRESIDENT AND GENERAL COUNSEL
1200 SOLDIERS FIELD DRIVE
SUGAR LAND, TEXAS 77479
(Name and address of agent for service)
(281) 243-0127
(Telephone number, including area code, of agent for service)
Copies to:
CHRISTOPHER S. COLLINS
VINSON & ELKINS L.L.P.
1001 FANNIN STREET, SUITE 2300
HOUSTON, TEXAS 77002
(713) 758-2222
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE FEE
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Common Stock (par value $0.01 per share).. 4,000,000 shares $15.52 $62,080,000 $5,711.36
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(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended (the
"Securities Act") this registration statement also covers such number of
additional shares of common stock that may become issuable under the
Technical Olympic USA, Inc. Annual and Long-Term Incentive Plan in the
event of certain changes in the outstanding shares, including stock splits,
stock dividends, combinations or reclassifications of shares,
recapitalizations, or mergers.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h) under the Securities Act.
The offering price per share and aggregate offering price for the unissued
stock options and common stock are based upon the average of the high and
low prices of registrant's common stock as reported on the NASDAQ National
Market System on September 3, 2002.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participants as specified by Rule 428(b)(1)
promulgated under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which we have filed with the Securities and
Exchange Commission (the "Commission"), are incorporated by reference in this
registration statement:
(a) our annual report on Form 10-K for the year ended December 31,
2001, as filed with the Commission on March 25, 2002;
(b) our quarterly reports on Form 10-Q for the fiscal quarters
ended March 31, 2002, and June 30, 2002, as filed with the
Commission on May 15, 2002, and August 13, 2002, respectively;
(c) our current reports on Form 8-K filed with the Commission on
April 29, 2002, May 31, 2002, June 5, 2002, June 18, 2002,
July 9, 2002, and August 14, 2002; and
(d) the description of our common stock contained in our
registration statement on Form S-1, File No. 333-42213, filed
with the Commission on December 15, 1997, under the caption
"Description of Capital Stock," as updated by our Certificate
of Incorporation, filed with the Commission on March 27, 2001,
as Exhibit 3.1 and as amended by our Certificate of Amendment
amending the Certificate of Incorporation, a form of which has
been filed with the Commission on June 3, 2002 on our
Information Statement on Form 14-C as Exhibit 99.B.
All documents we file pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Securities and Exchange Act of 1934, as amended (the "Exchange Act")
subsequent to the effective date of this registration statement and prior to the
filing of a post-effective amendment to this registration statement that (1)
indicates that all securities registered on this registration statement have
been sold or (2) deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this registration statement and to be
a part of this registration statement from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference in this registration statement shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained in this registration statement or in any other subsequently
filed document which also is or is deemed to be incorporated by reference in
this registration statement 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.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding whether civil, criminal, administrative or investigative,
other than an action by or in the right of the corporation, by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorney's fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which he shall have been adjudged to be liable to the corporation unless and
only to the extent that the Delaware Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all of the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem
proper.
Section 145 also provides that to the extent a director, officer,
employee or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to above, or
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Furthermore, Section 145 provides that nothing in the above-described
provisions shall be deemed exclusive of any other rights to indemnification or
advancement of expenses to which any person may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
As permitted by Section 102(b)(7) of the DGCL, our Certificate of
Incorporation, as amended, provides that directors of our company shall have no
personal liability to our company or our stockholders for monetary damages for
breach of fiduciary duty as a director, except (1) for any breach of the
director's duty of loyalty to our company or our stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of law, (3) under Section 174 of the DGCL (pertaining to certain
prohibited acts including unlawful payment of dividends or unlawful purchase or
redemption of the corporation's capital stock) or (4) for any transaction from
which a director derived an improper personal benefit.
In addition, we have entered into employment agreements with Tommy
McAden, our chief financial officer, and Antonio Mon, our chief executive
officer and director, and indemnity agreements with our other directors which
contain provisions which are in some respects broader than the specific
indemnification provisions contained in the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another document that we have filed with the Commission, each of the following
exhibits is filed herewith:
3.1 Certificate of Incorporation (filed with the Commission as
Exhibit 3.1 to our Form 8-K filed on March 27, 2001 and
incorporated herein by reference).
3.2 The Certificate of Amendment amending the Certificate of
Incorporation (filed with the Commission as Exhibit 99.B to
our Information Statement on Form 14-C filed on June 3, 2002
and incorporated herein by reference).
3.3 Bylaws (filed with the Commission as Exhibit 3.2 to our Form
8-K filed on March 27, 2001 and incorporated herein by
reference).
4.1* Specimen Common Stock certificate.
4.2 Indenture dated as of June 25, 2002, among Technical Olympic
USA, Inc., certain direct and indirect subsidiaries of
Technical Olympic USA, Inc. and Wells Fargo Bank Minnesota,
National Association, as Trustee, relating to the Senior Notes
(filed with the Commission as Exhibit 4.1 to our Form 8-K
filed on July 9, 2002 and incorporated herein by reference).
4.3 Indenture dated as of June 25, 2002, among Technical Olympic
USA, Inc., certain direct and indirect subsidiaries of
Technical Olympic USA, Inc. and Wells Fargo Bank Minnesota,
National Association, as Trustee, related to the Senior
Subordinated Notes (filed with the Commission as Exhibit 4.2
to our Form 8-K filed on July 9, 2002 and incorporated herein
by reference).
4.4 Registration Rights Agreement dated June 25, 2002, among
Technical Olympic USA, Inc., certain direct and indirect
subsidiaries of Technical Olympic USA, Inc., Salomon Smith
Barney, Inc., Deutsche Bank Securities, Inc. and Fleet
Securities, Inc. relating to the Senior Notes (filed with the
Commission as Exhibit 4.3 to our Form 8-K filed on July 9,
2002 and incorporated herein by reference).
4.5 Registration Rights Agreement dated June 25, 2002, among
Technical Olympic USA, Inc., certain direct and indirect
subsidiaries of Technical Olympic USA, Inc., Salomon Smith
Barney Inc., Deutsche Bank Securities Inc. and Fleet
Securities, Inc. relating to the Senior Subordinated Notes
(filed with the Commission as Exhibit 4.4 to our Form 8-K
filed on July 9, 2002 and incorporated herein by reference).
4.6 Registration Rights Agreement dated June 25, 2002, among
Technical Olympic USA, Inc. and Technical Olympic, Inc. (filed
with the Commission as Exhibit 2.2 to our Form 8-K filed on
July 9, 2002, and incorporated herein by reference).
5.1* Opinion of Vinson & Elkins L.L.P.
10.1* Technical Olympic USA, Inc. Annual and Long-Term Incentive
Plan, as amended.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of BDO Seidman LLP.
23.3* Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
24.1* Powers of Attorney (included on the signature page to this
registration statement).
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*filed herewith
ITEM 9. UNDERTAKINGS.
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:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(b) 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
(c) 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 the undertakings set forth in paragraphs (1)(a) and
(1)(b) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(4) That, for the purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(5) 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Miami, State of Florida, on the 9th day of September,
2002.
TECHNICAL OLYMPIC USA, INC.
By: /s/ Tommy McAden
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Tommy McAden
Vice President-Finance and
Administration and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Tommy McAden as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
or post-effective amendments to this registration statement on Form S-8, and to
file the same with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and ratifying and confirming all that such
attorney-in-fact and agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the 9th day of September, 2002.
SIGNATURE TITLE
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/s/ Antonio Mon Executive Vice Chairman, Chief Executive Officer,
---------------------------------------- President and Director
Antonio B. Mon (Principal Executive Officer)
/s/ Tommy McAden Vice President-Finance and Administration and Chief
---------------------------------------- Financial Officer
Tommy L. McAden (Principal Financial Officer)
/s/ Randy Kotler Chief Accounting Officer
---------------------------------------- (Principal Accounting Officer)
Randy Kotler
/s/ Constantine Stengos Chairman of the Board
----------------------------------------
Constantine Stengos
/s/ Yannis Delikanakis Executive Vice Chairman and Director
----------------------------------------
Yannis Delikanakis
Emeritus Vice Chairman and Director
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Lonnie M. Fedrick
/s/ Andreas Stengos Director
----------------------------------------
Andreas Stengos
/s/ George Stengos Director
----------------------------------------
George Stengos
/s/ Larry Horner Director
----------------------------------------
Larry D. Horner
/s/ William Hasler Director
----------------------------------------
William A. Hasler
Director
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Michael J. Poulous
Director
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Michael S. Stevens
INDEX TO EXHIBITS
3.1 Certificate of Incorporation (filed with the Commission as
Exhibit 3.1 to our Form 8-K filed on March 27, 2001 and
incorporated herein by reference).
3.2 The Certificate of Amendment amending the Certificate of
Incorporation (filed with the Commission as Exhibit 99.B to
our Information Statement on Form 14-C filed on June 3, 2002
and incorporated herein by reference).
3.3 Bylaws (filed with the Commission as Exhibit 3.2 to our Form
8-K filed on March 27, 2001 and incorporated herein by
reference).
4.1* Specimen Common Stock certificate.
4.2 Indenture dated as of June 25, 2002, among Technical Olympic
USA, Inc., certain direct and indirect subsidiaries of
Technical Olympic USA, Inc. and Wells Fargo Bank Minnesota,
National Association, as Trustee, relating to the Senior Notes
(filed with the Commission as Exhibit 4.1 to our Form 8-K
filed on July 9, 2002 and incorporated herein by reference).
4.3 Indenture dated as of June 25, 2002, among Technical Olympic
USA, Inc., certain direct and indirect subsidiaries of
Technical Olympic USA, Inc. and Wells Fargo Bank Minnesota,
National Association, as Trustee, related to the Senior
Subordinated Notes (filed with the Commission as Exhibit 4.2
to our Form 8-K filed on July 9, 2002 and incorporated herein
by reference).
4.4 Registration Rights Agreement dated June 25, 2002, among
Technical Olympic USA, Inc., certain direct and indirect
subsidiaries of Technical Olympic USA, Inc., Salomon Smith
Barney, Inc., Deutsche Bank Securities, Inc. and Fleet
Securities, Inc. relating to the Senior Notes (filed with the
Commission as Exhibit 4.3 to our Form 8-K filed on July 9,
2002 and incorporated herein by reference).
4.5 Registration Rights Agreement dated June 25, 2002, among
Technical Olympic USA, Inc., certain direct and indirect
subsidiaries of Technical Olympic USA, Inc., Salomon Smith
Barney Inc., Deutsche Bank Securities Inc. and Fleet
Securities, Inc. relating to the Senior Subordinated Notes
(filed with the Commission as Exhibit 4.4 to our Form 8-K
filed on July 9, 2002 and incorporated herein by reference).
4.6 Registration Rights Agreement dated June 25, 2002, among
Technical Olympic USA, Inc. and Technical Olympic, Inc. (filed
with the Commission as Exhibit 2.2 to our Form 8-K filed on
July 9, 2002, and incorporated herein by reference).
5.1* Opinion of Vinson & Elkins L.L.P.
10.1* Technical Olympic USA, Inc. Annual and Long-Term Incentive
Plan, as amended.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of BDO Seidman LLP.
23.3* Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
24.1* Powers of Attorney (included on the signature page to this
registration statement).
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*filed herewith