Conformed Copy With Exhibits
As filed with the Securities and Exchange Commission on July 16, 2004
Registration No. 333-101494
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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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DYCOM INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
Florida 59-1277135
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
4440 PGA Boulevard, Suite 500
Palm Beach Gardens, Florida 33410
(Address of Principal Executive Offices)
DYCOM INDUSTRIES, INC.
2003 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
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RICHARD L. DUNN
Senior Vice President & Chief Financial Officer
Dycom Industries, Inc.
4440 PGA Boulevard, Suite 500
Palm Beach Gardens, Florida 33410
(Name and address of agent for service)
(561) 627-7171
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be to be Offering Price Per Aggregate Registration
Registered Registered Share Offering Price Fee
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Common Stock 2,435,944 $25.92 $63,139,668.48 (1) $7,999.80
par value $0.33 1/3 per
share
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223,000 $25.50 $5,686,340 (2) $720.50
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(1) Pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), the proposed maximum offering price per
share is based on the average of the high and low prices of the
Registrant's Common Stock on the New York Stock Exchange consolidated
reporting system on July 14, 2004, and is estimated solely for the
purpose of calculating the registration fee.
(2) Pursuant to Rule 457(h) under the Securities Act, the proposed maximum
offering price per share is based on the average weighted offering price
of (i) 88,000 shares of Common Stock subject to outstanding but
unexercised options granted under the Dycom Industries, Inc. 2003
Long-Term Incentive Plan (the "2003 Plan") on November 25, 2003, (ii)
5,000 shares of restricted Common Stock granted under the 2003 Plan on
November 25, 2003, (iii) 30,000 shares of Common Stock subject to
outstanding but unexercised options granted under the 2003 Plan on
December 3, 2003, and (iv) 100,000 shares of restricted Common Stock
granted under the 2003 Plan on January 2, 2004, and is estimated solely
for the purpose of calculating the registration fee.
Explanatory Note
Dycom Industries, Inc., a Florida corporation (the "Registrant"), hereby files
this Registration Statement on Form S-8 (this "Registration Statement") relating
to up to (i) 2,000,000 shares of Common Stock authorized for issuance under the
2003 Plan, (ii) 158,944 shares of Common Stock previously authorized but not
granted pursuant to awards under the 1998 Dycom Industries, Inc. Incentive Stock
Option Plan (the "Prior Plan") as of November 25, 2003 (the date the 2003 Plan
was approved), and (iii) 500,000 shares of Common Stock corresponding to awards
that were granted under the Prior Plan as of November 25, 2003 but are forfeited
and cancelled under the terms of the Prior Plan after November 25, 2003.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act, and the "Note" to Part I of Form S-8.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed or will be filed
by the Registrant with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are incorporated as of their respective dates in
this Registration Statement by reference and shall be deemed to be a part
hereof:
(a) the Registrant's Annual Report on Form 10-K for the
fiscal year ended July 26, 2003 (filed October 2,
2003);
(b) the Registrant's Quarterly Reports on Form 10-Q (i)
for the quarter ended October 25, 2003 (filed
December 5, 2003), (ii) for the quarter ended January
24, 2004 (filed March 9, 2004) and (iii) for the
quarter ended April 24, 2004 (filed June 8, 2004);
(c) the Registrant's Current Reports on Form 8-K (i)
dated and filed August 25, 2003, (ii) dated August
26, 2003 (filed August 28, 2003), (iii) dated
November 5, 2003 (filed November 6, 2003), (iv) dated
and filed November 17, 2003, (v) dated November 24,
2003 (filed December 2, 2003), (vi) dated and filed
November 25, 2003, (vii) dated November 25, 2003
(filed December 10, 2003), (viii) dated December 3,
2003 (filed December 4, 2003), (ix) dated December 8,
2003 (filed December 9, 2003, Forms 8-K/A filed
February 9, 2004 and February 17, 2004), (x) dated
December 9, 2003 (filed December 12, 2003), (xi)
dated February 23, 2004 (filed February 27, 2004),
and (xii) dated May 28, 2004 (filed June 1, 2004);
and
(d) the description of the common stock, par value
$0.331/3 per share under the heading "Description of
Dycom Capital Stock," contained in the Registrant's
Amended Registration Statement on Form S-4 dated and
filed February 12, 2002.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, are deemed to be
incorporated by reference in this Registration Statement and are a part hereof
from the date of filing such documents. Any statement contained in a document
incorporated or deemed to be 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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Florida Business Corporation Act ("FBCA"). Section 607.0850(1)
of the FBCA provides that a Florida corporation, such as the Registrant, shall
have the power to indemnify any person who was or is a party to any proceeding
(other than an action by, or in the right of, the corporation), by reason of the
fact that he is or was a
director or officer 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
liability incurred in connection with such proceeding, including any appeal
thereof, if he or she acted in good faith and in a manner he or she 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 or her conduct was unlawful.
Section 607.0850(2) of the FBCA provides that a Florida
corporation shall have the power to indemnify any person, who was or is a party
to any proceeding by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he or she is or was a director or officer
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 and amounts paid in
settlement not exceeding, in the judgment of the board of directors, the
estimated expense of litigating the proceeding to conclusion, actually and
reasonably incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof. Such indemnification shall be
authorized if such person acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification shall be made under this subsection
in respect of any claim, issue, or matter as to which such person shall have
been adjudged to be liable unless, and only to the extent that, the court in
which such proceeding was brought, or any other court of competent jurisdiction,
shall determine upon application that, despite the adjudication of liability but
in view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
Section 607.850 of the FBCA further provides that: (i) to the
extent that a director or officer of a corporation has been successful on the
merits or otherwise in defense of any proceeding referred to in subsection (1)
or subsection (2), or in defense of any proceeding referred to in subsection (1)
or subsection (2), or in defense of any claim, issue, or matter therein, he or
she shall be indemnified against expenses actually and reasonably incurred by
him or her in connection therewith; (ii) indemnification provided pursuant to
Section 607.0850 is not exclusive; and (iii) the corporation shall have the
power to purchase and maintain insurance on behalf of a director or officer of
the corporation against any liability asserted against him or her or incurred by
him or her in any such capacity or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify him or her
against such liabilities under Section 607.0850.
Notwithstanding the foregoing, Section 607.0850 of the FBCA
provides that indemnification or advancement of expenses shall not be made to or
on behalf of any director or officer if a judgment or other final adjudication
establishes that his or her actions, or omissions to act, were material to the
cause of action so adjudicated and constitute: (i) a violation of the criminal
law, unless the director or officer had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her conduct was
unlawful; (ii) a transaction from which the director or officer derived an
improper personal benefit; (iii) in the case of a director, a circumstance under
which the liability provisions regarding unlawful distributions are applicable;
or (iv) willful misconduct or a conscious disregard for the best interests of
the corporation in a proceeding by or in the right of the corporation to procure
a judgment in its favor or in a proceeding by or in the right of a shareholder.
Section 607.0831 of the FBCA provides that a director of a
Florida corporation, such as the Registrant, is not personally liable for
monetary damages to the corporation or any other person for any statement, vote,
decision, or failure to act, regarding corporate management or policy, by a
director, unless: (i) the director breached or failed to perform his or her
duties as a director; and (ii) the director's breach of, or failure to perform,
those duties constitutes: (A) a violation of criminal law, unless the director
had reasonable cause to believe his or her conduct was lawful or had no
reasonable cause to believe his conduct was unlawful; (B) a transaction from
which the director derived an improper personal benefit, either directly or
indirectly; (C) a circumstance under which the liability provisions regarding
unlawful distributions are applicable; (D) in a proceeding by or in the right of
the corporation to procure a judgment in its favor or by or in the right of a
shareholder, conscious disregard for the best interest of the corporation, or
willful misconduct; or (E) in a proceeding by or in the right of someone other
than the corporation or a shareholder, recklessness or an act or omission which
was committed in bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property.
By-laws. The Registrant's by-laws provide that, except as
prohibited under Florida law, it shall indemnify any person who was or is made a
party to any proceeding by reason of the fact that he or she was or is a
director or officer of the corporation, or a director or officer of the
corporation serving as a trustee or fiduciary of an employee benefit plan of the
corporation, against liability incurred in connection with such proceeding,
including any appeal thereof. The Registrant maintains insurance policies
insuring its directors and officers against certain liabilities they may incur
in their capacity as directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
The Exhibits listed on the accompanying Exhibit Index are
filed as part hereof, or incorporated by reference into, this Registration
Statement (See Exhibit Index below).
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 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;
(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; 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 (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.
(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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Palm Beach Gardens, State of Florida, on May 24,
2004.
DYCOM INDUSTRIES, INC.
By: /s/ Steven E. Nielsen
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Name: Steven E. Nielsen
Title: President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Steven E. Nielsen as such
person's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution for such person and in such person's name, place
and stead, in any and all capacities, to sign and file (1) any and all
amendments (including post-effective amendments) to this Registration Statement,
with all exhibits thereto, and other documents in connection therewith and (2) a
registration statement, and any and all amendments thereto, relating to the
offering covered hereby filed pursuant to Rule 462(b) under the Securities Act,
with the Securities and Exchange Commission, granting unto said 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 might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact, agent or their substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated.
Signature Title Date
/s/ Steven E. Nielsen Principal Executive Officer May 24, 2004
------------------------------ and Director
Steven E. Nielsen
/s/ Richard L. Dunn Principal Financial and May 24, 2004
------------------------------ Accounting Officer
Richard L. Dunn
/s/ Charles M. Brennan, III Director May 24, 2004
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Charles M. Brennan, III
/s/ Stephen C. Coley Director May 24, 2004
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Stephen C. Coley
/s/ Kristina M. Johnson Director May 24, 2004
------------------------------
Kristina M. Johnson
/s/ Joseph M. Schell Director May 24, 2004
------------------------------
Joseph M. Schell
/s/ Tony G. Werner Director May 24, 2004
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Tony G. Werner
Exhibit Index
Exhibit No. Description of Document
4.1 Restated Articles of Incorporation (incorporated by reference
to Exhibit 3 of the Registrant's Form 10-Q filed with the
Commission on June 11, 2002, File No. 001-10613).
4.2 Amended By-laws of the Registrant (incorporated by reference
to Exhibit 3(ii) of the Registrant's Registration Statement on
Form S-4 filed with the Commission on January 23, 2002, File
No. 333-81268).
4.3 Description of the Registrant's Capital Stock (incorporated by
reference to the Registrant's Amended Registration Statement
on Form S-4 filed with the Commission on February 12, 2002,
File No. 333-81268).
4.4 Shareholder Rights Agreement, dated April 4, 2001, between the
Registrant and the Rights Agent which includes the Form of
Rights Certificate, as Exhibit A, the Summary of Rights to
Purchase Preferred Stock, as Exhibit B, and the Form of
Articles of Amendment to the Articles of Incorporation for
Series A Preferred Stock, as Exhibit C (incorporated by
reference to Exhibit 1 of the Registrant's Form 8-A, filed
with the Commission on April 6, 2001, File No. 001-10613).
4.5 2003 Long-Term Incentive Plan (incorporated herein by
reference to Exhibit A to the Registrant's Proxy Statement
(No. 001-10613), filed with the Commission on October 30,
2003).
5* Opinion and consent of Akerman Senterfitt as to the legality
of the securities registered hereby.
23.1* Consent of Deloitte & Touche LLP.
23.2 Consent of Akerman Senterfitt (included in Exhibit 5).
24 Power of Attorney (included on the signature pages to this
Registration Statement).
* Filed herewith.