As filed with the Securities and Exchange Commission on March 13, 2001
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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HOVNANIAN ENTERPRISES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 22-1851059
(State or other jurisdiction (I.R.S. Employer
of incorporation organization) Identification Number)
10 Highway 35
P.O. Box 500
Red Bank, New Jersey 07701
(732) 747-7800
(Address, including zip code, of Registrant's principal executive office)
HOVNANIAN ENTERPRISES, INC.
1983 STOCK OPTION PLAN
(As Amended and Restated May 4, 1990
and Amended through May 14, 1998)
(Full title of the Plan)
Peter S. Reinhart
Senior Vice President, General Counsel and Secretary
Hovnanian Enterprises, Inc.
10 Highway 35
P.O. Box 500
Red Bank, New Jersey 07701
(732) 747-7800
(Name, address, including zip code, and telephone number, including area
code, of Registrant's agent for service)
Copies to:
Vincent Pagano, Jr.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Offering Registration
to be Registered Registered Per Share Price Fee
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Class A Common Stock,
$0.01 par
value per share 1,087,500 $12.335(a) $13,414,312.50(a) $3,353.58
Class B Common Stock, 87,500 $ 12.42(b) $ 1,086,750.00(b) $ 271.69
$0.01 par
value per share
(a) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(h)(i) and 457(c) under the Securities Act of 1933,
as amended. The proposed maximum offering price per share, the proposed
maximum aggregate offering price and the amount of registration fee have
been computed on the basis of the average high and low prices per share
of the Class A Common Stock on the American Stock Exchange on March 7,
2001.
(b) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(h)(i) under the Securities Act of 1933, as
amended. The proposed maximum offering price per share, the proposed
maximum aggregate offering price and the amount of registration fee have
been computed on the basis of book value of the Class B Common Stock as
of October 31, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Hovnanian Enterprises, Inc. (the
"Company" or "Registrant") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are hereby incorporated by reference in this
Registration Statement.
1. The Company's Current Report on Form 8-K filed pursuant to the Exchange
Act (File No. 001-08551; Film No. 1527608) on February 7, 2001, for the
period ending January 23, 2001.
2. The Company's Annual Report on Form 10-K filed pursuant to the Exchange
Act (File No. 001-08551; Film No. 1516995) on January 29, 2001, for the
year ended October 31, 2000.
3. The description of the Company's capital stock incorporated by reference
to Exhibit 3(b) of the Registrant's Annual Report on Form 10-K for the
year ended February 28, 1993.
All documents filed by the Company pursuant to Sections 13, 14 or 15(d) of
the Exchange Act after the date of this Registration Statement and prior to
the filing of a post-effective amendment to this Registration Statement
indicating that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
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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 required.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Registrant is a Delaware corporation. Section 145 of the General
Corporation Law of the State of Delaware grants each corporation organized
thereunder the power to indemnify any person who is or was a director,
officer, employee or agent of another corporation or enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with 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 being or having been in any such
capacity, if he acted in good faith in a manner 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 102(b)(7) of the General Corporation Law of the
State of Delaware enables a corporation in its certificate of incorporation
or an amendment thereto validly approved by stockholders to limit or
eliminate the personal liability of the members of its board of directors for
violations of the directors' fiduciary duty care.
Article EIGHTH of the Company's Certificate of Amendment of Certificate
of Incorporation contains the following provisions with respect to
indemnification:
No director of the Company shall be personally liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director; provided, however, that this Article shall not eliminate or limit
the liability of a director (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit. This Article shall not eliminate or limit the liability of a
director for any act or omission occurring prior to the date on which this
Article becomes effective. Any repeal or modification of this Article Eighth
shall not adversely affect any right or protection of a director of the
Company existing hereunder with respect to any act or omission occurring
prior to the time of such repeal or modification.
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Item 7. Exemption from Registration Claimed.
None.
Item 8. Exhibits.
4.1(a) Certificate of Incorporation of the Company incorporated by
reference to Exhibits to Registration Statement (No. 2-85198)
on Form S-1 of the Company
4.1(b) Certificate of Amendment of Certificate of Incorporation of
the Company incorporated by reference to Exhibits to Annual
Report on Form 10-K for the year ended February 28, 1994
4.2 By-laws of the Company incorporated by reference to Exhibits to
Annual Report on Form 10-K for the year ended February 28, 1994
5 Opinion of Simpson Thacher & Bartlett with respect to legality
of securities being registered hereunder
23.1 Consent of Ernst & Young LLP
23.2 Consent of Simpson Thacher & Bartlett (Reference is made to
Exhibit 5 filed herewith)
24 Power of Attorney
Item 9. Undertakings.
The Company hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the 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 the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
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changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this post-effective
amendment.
(2) That, for the purpose of determining any liability under the
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 hereby which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 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
herein, 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 Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions of the Certificate of Amendment Certificate of
Incorporation of the registrant and the provisions of Delaware law described
under Item 6 above, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in
the 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
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such indemnification by it is against public policy as expressed in the 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 Red Bank, and State of New Jersey
on the 13th day of March, 2001.
HOVNANIAN ENTERPRISES, INC.
By: /s/ Peter S. Reinhart
Peter S. Reinhart
Senior Vice President and
General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated.
Signature Title Date
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* Kevork S. Hovnanian
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Kevork S. Hovnanian Chairman of the Board March 13, 2001
* Ara K. Hovnanian
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Ara K. Hovnanian Chief Executive Officer,
President and Director March 13, 2001
* Paul W. Buchanan
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Paul W. Buchanan Senior Vice President
Corporate Controller
and Director March 13, 2001
/s/ Peter S. Reinhart
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Peter S. Reinhart Senior Vice President,
General Counsel, Secretary
and Director March 13, 2001
/s/ J. Larry Sorsby
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J. Larry Sorsby Executive Vice President,
Chief Financial
Officer and Director March 13, 2001
* Geaton A. DeCesaris, Jr.
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Geaton A. DeCesaris, Jr. President Homebuilding
Operations, Chief Operating
Officer and Director March 13, 2001
By /s/ Peter S. Reinhart
-----------------------------
Peter S. Reinhart
*Attorney-in-fact March 13, 2001
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INDEX TO EXHIBITS
Exhibit
Number Description
4.1(a) Certificate of Incorporation of the Company incorporated by
reference to Exhibits to Registration Statement (No. 2-85198)
on Form S-1 of the Company
4.1(b) Certificate of Amendment of Certificate of Incorporation of
the Company incorporated by reference to Exhibits to Annual
Report on Form 10-K for the year ended February 28, 1994
4.2 By-laws of the Company incorporated by reference to Exhibits to
Annual Report on Form 10-K for the year ended February 28, 1994
5 Opinion of Simpson Thacher & Bartlett with respect to legality of
securities being registered hereunder
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Simpson Thacher & Bartlett (Reference is made to Exhibit
5 filed herewith)
24 Power of Attorney.
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Exhibit 5
(SIMPSON THACHER & BARTLETT LETTERHEAD)
March 13, 2001
Hovnanian Enterprises, Inc.
10 Highway 35
P.O. Box 500
Red Bank, New Jersey 07701
Ladies and Gentlemen:
We have acted as counsel to Hovnanian Enterprises, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") filed by the Company with the
Securities Exchange Commission (the "Commission") under the Securities Act of
1933, as amended (the "Act"), relating to 1,087,500 Shares of the Class A
Common Stock, par value $.01 per share, and 87,500 Shares of the Class B
Common Stock, par value $0.01 per share of the Company (collectively, the
"Shares"), in connection with the Hovnanian Enterprise, Inc. 1983 Stock
Option Plan (As Amended and Restated May 4, 1990 and Amended through May 14,
1998) (the "Plan").
We have examined a copy of the Plan, the Registration Statement
(including the exhibits thereto), the related Prospectus (the "Prospectus")
and a form of the share certificates. We have also examined, the originals,
or duplicates or certified or conformed copies, of such records, agreements,
instruments and other documents and have made such other and further
investigations as we have deemed relevant and necessary in connection with
the opinions expressed herein. As to questions of fact material to this
opinion, we have relied upon certificates of public officials and of officers
and representatives of the Company.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as duplicates or certified or conformed copies, and
the authenticity of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that when appropriate action
has been taken by the Compensation Committee of the Board of Directors of the
Company and when such Shares have been awarded to participants in the Plan
("Participants"), or issued upon exercise of options granted to Participants,
in each case in accordance with the provisions of the Plan, any Shares to be
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so awarded or issued to such Participants will be validly issued, fully paid
and nonassessable.
We are members of the Bar of the State of New York and we do not express
any opinion herein concerning any law other than the law of the State of New
York and the Delaware General Corporation Law.
We hereby consent to the filing of this opinion letter as an Exhibit to
the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
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Exhibit 23.1
(ERNST & YOUNG, LLP LETTERHEAD APPEARS HERE)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference into the Registration
Statement (Form S-8) of Hovnanian Enterprises, Inc. (the "Company")
pertaining to the Hovnanian Enterprises, Inc. 1983 Stock Option Plan (As
Amended and Restated May 4, 1990 and Amended through May 14, 1998) for the
registration of 1,087,500 shares of Class A Common Stock and 87,500 shares of
Class B Common Stock of our report dated December 13, 2000 (except for Note
15, paragraph 4, as to which the date is January 23, 2001), with respect to
the consolidated financial statements of the Company included in its Annual
Report (Form 10-K) for each of the three years in the period ended October
31, 2000, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
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Ernst & Young LLP
New York, New York
March 12, 2001
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Exhibit 24
HOVNANIAN ENTERPRISES, INC.
1983 Stock Option Plan
(as Amended and Restated May 4, 1990, and Amended through May 14, 1998)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and
directors of Hovnanian Enterprises, Inc., a Delaware corporation, (the
"Company") in their respective capacities set forth below constitutes and
appoints Peter S. Reinhart and J. Larry Sorsby, and each of them their true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for them and in their names, place and stead, in any and all
capacities, to do any and all acts and all things and to execute any and all
instruments which said attorney and agent may deem necessary or desirable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations and requirements of the Securities and Exchange
Commission thereunder in connection with the registration under such Act of
the Class A Common Stock, par value $0.01 per share and Class B Common Stock,
par value $0.01 per share (collectively, the "Common Stock") of the Company
to be issued by the Company pursuant to the 1983 Stock Option Plan (as
amended and restated May 4, 1990, and amended through May 14, 1998) to the
extent that any such registration may be required in the opinion of the
executive officers of the Company, upon the advice of counsel, including
without limitation, the power and authority to sign the name of the
undersigned individual in the capacity indicated below opposite the name of
such individual to the Registration Statement on Form S-8 or any Form
relating to the registration of such Common Stock, to be filed with the
Securities and Exchange Commission with respect to said Common Stock, to sign
any and all amendments (including post-effective amendments) and supplements
to such Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
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/s/ Kevork S. Hovnanian
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Kevork S. Hovnanian Chairman of the Board March 13, 2001
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/s/ Ara K. Hovnanian
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Ara K. Hovnanian Chief Executive Officer,
President and Director March 13, 2001
/s/ Paul W. Buchanan
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Paul W. Buchanan Senior Vice President Corporate
Controller and Director March 13, 2001
/s/ Geaton A. DeCesaris, Jr.
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Geaton A. DeCesaris, Jr. President Homebuilding
Operations, Chief Operating
Officer and Director March 13, 2001
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