As filed with the Securities and Exchange Commission on March 4, 2002
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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)
ARGUSS COMMUNICATIONS, INC. 1991 STOCK OPTION PLAN
(Full title of the plan)
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MARC R. TILLER
General Counsel & Corporate Secretary
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 (1) Share Offering Price Fee
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To be issued for awards 1,128,476 shares (2) $40.56 (3) $45,770,986.56 $4,210.93
under the Arguss
Communications, Inc.
1991 Stock Option Plan,
as amended
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TOTAL 1,128,476 shares $40.56 (3) $45,770,986.56 $0 (4)
===========================================================================================
(1) Based on the number of shares of Arguss Communications, Inc. ("Arguss")
common stock that was reserved for issuance in connection with the
awards outstanding under the Arguss Communications, Inc. 1991 Stock
Option Plan, as amended (the "1991 Plan") as of the close of business
on February 20, 2002, that will be converted into the right to receive
0.3333 shares of the Registrant's common stock (the "Merger Ratio")
upon the consummation of the merger (the "Merger") contemplated in the
Agreement and Plan of Merger, dated as of January 7, 2002, among Dycom
Industries Inc. (the "Registrant"), Troy Acquisition Corp., and Arguss
(the "Merger Agreement").
(2) Based on the product of (i) 3,385,767, the number of shares of Arguss
common stock that were reserved for issuance in connection with the
stock option awards outstanding under the 1991 Plan, and (ii) 0.3333,
the Merger Ratio, as of the close of business on February 21, 2002.
(3) Estimated in accordance with Rule 457(h) of the Securities Act of 1933,
as amended (the "Securities Act"), solely for purposes of determining
the registration fee. Estimated based on the quotient of (i) $13.52,
the average weighted exercise price of shares of Arguss common stock
underlying the stock options, and (ii) 0.3333, the Merger Ratio, as of
the close of business on February 21, 2002.
(4) The aggregate amount of the registration fee for this Registration
Statement is $4,210.93. Pursuant to Rule 457(p) of the Securities Act,
the aggregate amount of the registration fee to be paid is offset by
(i) $1,575.98, representing an amount of the registration fee
previously paid by the Registrant in connection with the filing of the
Registration Statement on Form S-4, filed January 23, 2002 (File No.
333-81268), associated with 3,385,767 options that were outstanding and
exercisable as of January 23, 2002, to purchase Arguss common stock
that have not been exercised as of the close of business on February
21, 2002, the date of the consummation of the Merger, and (ii)
$2,634.95, representing the amount of the registration fee previously
paid by Arguss in connection with the filing of the Registration
Statement on Form S-8, filed on August 2, 2000 (File No. 333-42846),
associated with 535,886 unissued shares of Arguss common stock. As a
result, no registration fee is owed pursuant to this Registration
Statement.
Page 2 of 9
Exhibit Index Appears on Page 9
EXPLANATORY NOTE
This Registration Statement is being filed in connection with
the consummation of the Merger contemplated by the Merger Agreement. Following
consummation of the Merger, Arguss will be merged with and into Troy
Acquisitions Corp., a wholly owned subsidiary of the Registrant, and each
outstanding share of Arguss common stock (including the associated right to
purchase preferred shares) will be converted into the right to receive 0.3333
shares of the Registrant's common stock (including the associate right to
purchase preferred stock). Therefore, in accordance with the terms of the Merger
Agreement, the Registrant is filing this Registration Statement to reserve for
issuance a sufficient number of its common shares for delivery in accordance
with the terms and conditions of awards outstanding under the 1991 Plan.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
--------------------
* 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 Dycom Industries, Inc. 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:
(i) the Registrant's Annual Report on Form 10-K for the
fiscal year ending July 28, 2001;
(ii) the Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended October 27, 2001 and the
Registrant's Current Reports on Form 8-K dated
January 7, 2002, January 24, 2002, February 19, 2002,
February 20, 2002, and February 27, 2002;
(iii) the description of the common stock, par value
$0.3333 1/3 per share under the heading "Description
of Capital Stock," contained in the Registrant's
Amended Registration Statement on Form S-4 filed with
the Commission on 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 Dycom, 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 Dycom, 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. Dycom'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. Dycom 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.
See attached Exhibit list.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
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 the 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 February 26,
2002.
DYCOM INDUSTRIES, INC.
By: /s/ Steven E. Nielsen
-------------------------------
Name: Steven E. Nielsen
Title: President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Steven Nielsen, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for him and in his 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 Director and February 26, 2002
------------------------------------ Executive Officer
Steven E. Nielsen
/s/ Richard L. Dunn Principal Financial and February 26, 2002
------------------------------------ Accounting Officer
Richard L. Dunn
/s/ Kristina M. Johnson Director February 26, 2002
------------------------------------
Kristina M. Johnson
/s/ Joseph M. Schell Director February 26, 2002
------------------------------------
Joseph M. Schell
/s/ Tony G. Werner Director February 26, 2002
------------------------------------
Tony G. Werner
/s/ Ronald P Younkin Director February 26, 2002
------------------------------------
Ronald P. Younkin
Exhibit Index
Exhibit No. Description of Document
4.1 Articles of Incorporation (incorporated by reference to Exhibit
3.01 of the Registrant's Registration Statement on Form S-1 filed
with the Commission on October 29, 1986, File No. 033-09820).
4.2 Articles of Amendment to the Articles of Incorporation
(incorporated by reference to Exhibit 3.01 of the Registrant's
Registration Statement on Form S-1 filed with the Commission on
October 29, 1986, File No. 033-09820).
4.3 Articles of Amendment to the Articles of Incorporation
(incorporated by reference to Exhibit 3 of the Registrant's
Quarterly Report on Form 10-Q for the quarter ended April 22, 2001
filed with the Commission on June 11, 2001, File No. 001-10613).
4.4 Articles of Amendment to the Articles of Incorporation
(incorporated by reference to Exhibit 3.1(i)(3) of the Registrant's
Registration Statement on Form S-4 filed with the Commission on
January 23, 2002, File No. 333-81268).
4.5 Amended Bylaws 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).
4.6 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).
4.7 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).
4.8 1991 Plan (incorporated by reference to Exhibit 4(e) of Arguss'
Form S-8 filed on January 6, 1997, File No. 333-19277).
5* Opinion of Marc R. Tiller, Esq., General Counsel of the Registrant,
as to the legality of the securities registered hereby.
23.1* Consent of Deloitte & Touche LLP.
23.2 Consent of Marc R. Tiller, Esq., General Counsel to the Registrant
(included in Exhibit 5).
24 Power of Attorney (included on the signature pages to this
Registration Statement).
* Filed herewith.