AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 11, 2001.
REGISTRATION NO. 333-59190
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DAL-TILE INTERNATIONAL INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 7834 HAWN FREEWAY 13-3548809
(State or other jurisdiction of DALLAS, TEXAS 75217 (I.R.S. Employer
incorporation or organization) (214) 398-1411 Identification No.)
(Address, including zip code, and
telephone
number, including area code, of
registrant's
principal executive offices)
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JACQUES R. SARDAS
PRESIDENT, CHIEF EXECUTIVE OFFICER
AND CHAIRMAN OF THE BOARD
DAL-TILE INTERNATIONAL INC.
7834 HAWN FREEWAY
DALLAS, TEXAS 75217
(214) 398-1411
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
JEAN E. HANSON, ESQ. JAMES J. CLARK, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON CAHILL GORDON & REINDEL
ONE NEW YORK PLAZA 80 PINE STREET
NEW YORK, NEW YORK 10004-1980 NEW YORK, NEW YORK 10005-1702
(212) 859-8000 (212) 701-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, 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. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SHARES TO BE AGGREGATE PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT(1) PRICE REGISTRATION FEE
Common stock, par value $0.01 per share...... 16,100,000 $13.99 $225,239,000 $56,310(2)
(1) Estimated solely for purpose of calculating the amount of the registration
fee. Pursuant to Rule 457(c), the registration fee is based on the average
high and low sale prices of the Registrant's common stock as reported on the
New York Stock Exchange on April 11, 2001.
(2) Previously paid.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
In connection with the issuance and distribution of the securities being
registered with this registration statement, we will bear the following
estimated expenses, other than underwriting and commissions:
SEC registration fee........................................ $ 56,310
NASD filing fee............................................. 23,024
Accounting fees and expenses................................ 85,000
Legal fees and expenses..................................... 115,000
Blue Sky expenses and counsel fees.......................... 5,000
Printing and engraving expenses............................. 225,000
Transfer Agent and Registrar's fees and expenses............ 25,000
Miscellaneous expenses...................................... 20,666
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Total................................................... $555,000
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* Except for the SEC registration fee and the NASD filing fee, all the
above expenses have been estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article SEVENTH of our certificate of incorporation provides as follows:
"To the fullest extent permitted by the Delaware General Corporation Law
as the same exists or may hereafter be amended, a Director of the
Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a Director."
Section 145 of the General Corporation Law of the State of Delaware provides
as follows:
Under certain circumstances 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, 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 its request in such
capacity in another corporation or business association, 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.
In a derivative action, i.e., one by or in the right of the corporation,
indemnification may be made only for expenses actually and reasonably incurred
by a director, officer, employee or agent of the corporation, or a person who is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or business association in connection
with the defense or settlement of an action or suit, if such person has acted in
good faith and in a manner that 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 if such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the court in which the action or
suit was brought shall determine upon application that the defendant is fairly
and reasonably entitled to indemnity for such expenses despite such adjudication
of liability.
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We have entered into agreements to provide indemnification for our directors
in addition to the indemnification provided for in the our bylaws. These
agreements, among other things, indemnify the directors, to the fullest extent
provided by Delaware law, for certain expenses (including attorney's fees),
losses, claims, liabilities, judgments, fines and settlement amounts incurred by
the indemnitee in any action or proceeding, including any action by us or in our
right, on account of services as a director or officer of any of our affiliates,
or as a director or officer of any other company or enterprise that the
indemnitee provides services to at our request.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following is a list of exhibits filed as part of the registration
statement:
1.1. Form of Underwriting Agreement, among the Underwriters, the
selling stockholders and Dal-Tile International Inc.
4.1. Specimen form of certificate for common stock. (Filed as
Exhibit 4.1 to Dal-Tile's Registration Statement on Form S-1
(No. 333-5069) and incorporated herein by reference.)
5.1. Opinion of Fried, Frank, Harris, Shriver & Jacobson, counsel
to Dal-Tile International Inc., as to the legality of the
securities being offered.*
23.1. Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1).*
23.2. Consent of Ernst & Young LLP.*
24.1. Powers of Attorney.*
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* Previously filed.
ITEM 17. UNDERTAKINGS
As far as indemnification for liabilities arising under the Securities Act
may be permitted to any of our directors, officers and controlling persons
pursuant to the above provisions, or otherwise, we have been advised that in the
opinion of the Securities and Exchange Commission, this type of indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against these types
of liabilities (other than the payment by us of expenses incurred or paid by one
of our directors, officers or controlling persons in the successful defense of
any action, suit or proceeding) is asserted by this director, officer or
controlling person in connection with the securities being registered, we will,
unless in the opinion of our counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
this indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
We undertake that:
(1) For purposes of determining any liability under the Securities Act,
each filing of our annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered in that registration statement, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering of those securities.
(2) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the company pursuant to Rule 424(b)(1) or (4),
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(3) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered in that registration statement, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering of those securities.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, we certify that
we have reasonable grounds to believe we meets all requirements for filing on
Form S-3 and have duly caused this registration statement to be signed on our
behalf by the undersigned, who is duly authorized, in the city of Dallas, State
of Texas on the 11th day of May, 2001.
DAL-TILE INTERNATIONAL INC.
By: /s/ MARK A. SOLLS
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Name: Mark A. Solls
Title: VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY
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Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated:
SIGNATURE TITLE DATE
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* President, Chief Executive
------------------------------------------- Officer and Chairman of the May 11, 2001
Jacques R. Sardas Board of Directors
Executive Vice President,
* Chief Financial Officer and
------------------------------------------- Treasurer (Principal May 11, 2001
W. Christopher Wellborn Financial and Accounting
Officer)
*
------------------------------------------- Director May 11, 2001
Charles J. Pilliod, Jr.
*
------------------------------------------- Director May 11, 2001
Douglas D. Danforth
*
------------------------------------------- Director May 11, 2001
Vincent A. Mai
*
------------------------------------------- Director May 11, 2001
John F. Fiedler
*By: /s/ MARK A. SOLLS
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Mark A. Solls
ATTORNEY-IN-FACT
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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1.1. Form of Underwriting Agreement, among the Underwriters, the
selling stockholders and Dal-Tile International Inc.
4.1. Specimen form of certificate for common stock. (Filed as
Exhibit 4.1 to Dal-Tile's Registration Statement on Form S-1
(No. 333-5069) and incorporated herein by reference.)
5.1. Opinion of Fried, Frank, Harris, Shriver & Jacobson, counsel
to Dal-Tile International Inc., as to the legality of the
securities being offered.*
23.1. Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1).*
23.2. Consent of Ernst & Young LLP.*
24.1. Powers of Attorney.*
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* Previously filed.