-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IYRNj71YSyWUMCDddB7gi/05KmxDL/rlFYjS4ssUVN917E4IuVpb2tcIHHamonqI Bw4QnJeA2/PqNRtst3EvCQ== 0000893750-99-000681.txt : 19991220 0000893750-99-000681.hdr.sgml : 19991220 ACCESSION NUMBER: 0000893750-99-000681 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19991217 EFFECTIVENESS DATE: 19991217 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HOVNANIAN ENTERPRISES INC CENTRAL INDEX KEY: 0000357294 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 221851059 STATE OF INCORPORATION: DE FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-92977 FILM NUMBER: 99776579 BUSINESS ADDRESS: STREET 1: 10 HWY 35 STREET 2: PO BOX 500 CITY: RED BANK STATE: NJ ZIP: 07701 BUSINESS PHONE: 9087477800 MAIL ADDRESS: STREET 1: 10 HWY 35 PO BOX 500 STREET 2: 10 HWY 35 PO BOX 500 CITY: RED BANK STATE: NJ ZIP: 07701 S-8 1 Registration No. 33-________ _____________________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 HOVNANIAN ENTERPRISES, INC. (Exact name of Registrant as specified in its charter) Delaware 22-1851059 (State or other jurisdiction of (I.R.S. Employer Identification incorporation or organization) 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) 1999 HOVNANIAN ENTERPRISES, INC. STOCK INCENTIVE PLAN (Full title of the Plan) Peter S. Reinhart Senior Vice President and General Counsel 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 Title of Securities Amount to be Proposed Proposed Amount of to be Registered Registered Maximum Maximum Registration Offering Aggregate Price Per Offering Share (1) Price (1) _______________________________________________________________________________ Class A Common Stock, 1,500,000 $5.625 $8,437,500 $2,227.50 $0.01 par value per share . . . . . . (1) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(h)(1) 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 December 14, 1999. -2- 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 Annual Report on Form 10-K for the year ended October 31, 1998. 2. The description of the Company's capital stock contained in the Company's Registration Statement on Form 8-A dated August 23, 1983 incorporating by reference the "Description of Securities" in the Company's Registration Statement on Form S-1 Registration No. 2- 85198 with respect to the registration of the Class A Common Stock. 3. The Company's Quarterly Reports on Form 10-Q for the quarters ended January 31, 1999, April 30, 1999 and July 31, 1999. 4. The Company's Current Report on Form 8-K dated September 22, 1999. 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 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. -1- Item 6. Indemnification of Directors and Officers Hovnanian 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 Hovnanian'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. Hovnanian maintains a liability insurance policy providing coverage for its directors and officers in an amount up to an aggregate limit of $10,000,000 for any single occurrence. Item 7. Exemption from Registration Claimed. None. -2- Item 8. Exhibits. 4.1 - Restated Certificate of Incorporation of Hovnanian 4.2 - By-laws of Hovnanian 5 - Opinion of Simpson Thacher & Bartlett with respect to legality of securities being registered hereunder 23(a) - Consent of Ernst & Young LLP 23(b) - Consent of Simpson Thacher & Bartlett (Reference is made to Exhibit 5(b) 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 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 -3- 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 such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. -4- 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 17th day of December, 1999. HOVNANIAN ENTERPRISES 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 amendment has been signed below by the following persons in the capacities indicated on the 17th day of December, 1999. Signature Title Date _________ _____ ____ /s/ Kervork S. Hovnanian ____________________________ Kervork S. Hovnanian Chairman of the Board December 17, 1999 /s/ Ara K. Hovnanian Chief Executive ____________________________ Officer, President and Ara K. Hovnanian Director December 17, 1999 /s/ Paul W. Buchanan Senior Vice President ____________________________ Corporate Controller Paul W. Buchanan and Director December 17, 1999 /s/ William L. Carpitella Senior Vice President ____________________________ Organizational William L. Carpitella Development December 17, 1999 /s/ Peter S. Reinhart Senior Vice President, ____________________________ General Counsel and Peter S. Reinhart Director December 17, 1999 /s/ J. Larry Sorsby Senior Vice President, ____________________________ Treasurer, J. Larry Sorsby Chief Financial Officer and Director December 17, 1999 -5- EX-5 2 Exhibit 5 (SIMPSON THACHER & BARTLETT LETTERHEAD APPEARS HERE) December 15, 1999 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") which the Company intends to file with the Securities Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), relating to 1,500,000 shares of the Class A Common Stock, par value $.01 per share, of the Company (the "Shares"), in connection with the 1999 Hovnanian Enterprises Inc. Stock Incentive Plan (the "Plan"). We have examined a copy of the Plan, the Registration Statement (including the exhibits thereto) and the related Prospectus (the "Prospectus"). In addition, we have examined, and have relied as to matters of fact upon, 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. 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 so awarded or issued to such Participants will be validly issued, fully paid and nonassessable. -1- 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. 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 -2- EX-23.A 3 Exhibit 23(a) (ERNST & YOUNG, LLP LETTERHEAD APPEARS HERE) We consent to the incorporation by reference into the Registration Statement (Form S-8) of Hovnanian Enterprises, Inc. (the "Company") pertaining to the 1999 Stock Incentive Plan for the registration of 1,500,000 shares of Class A common stock of our report dated December 15, 1998, with respect to the consolidated financial statements and schedules of the Company included in its Annual Report (Form 10-K) for each of the three years in the period ended October 31, 1998, filed with the Securities and Exchange Commission. /s/Ernst & Young LLP New York, New York December 16, 1999 EX-24 4 Exhibit 24 HOVNANIAN ENTERPRISES, INC. STOCK INCENTIVE PLAN POWER OF ATTORNEY The undersigned directors of Hovnanian Enterprises, Inc., a Delaware corporation, hereby appoint Peter S. Reinhart and J. Larry Sorsby their true and lawful attorney, and each of them their true and lawful attorney, with power to act without the other and with full power of substitution and resubstitution, to execute for the undersigned directors and in their names to file with the Securities and Exchange Commission, Washington, D.C., under provisions of the Securities Act of 1933, as amended, one or more post-effective amendments to the Registration Statement on Form S-8, whether said amendments add to, delete from or otherwise alter such Registration Statement, or add or withdraw any exhibits or schedules to be filed therewith and any and all instruments in connection therewith. The undersigned hereby grant to said attorneys and each of them full power and authority to do and perform in the name of and on behalf of the undersigned, and in any and all capabilities, any act and thing whatsoever required or necessary to be done in and about the premises, as fully and to all intents and purposes as the undersigned might do, hereby ratifying and approving the acts of said attorneys and each of them. IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals this 17th day of December, 1999. /s/ Kervork S. Hovnanian ____________________________________ Kervork S. Hovnanian /s/ Ara K. Hovnanian ____________________________________ Ara K. Hovnanian /s/ Paul W. Buchanan ____________________________________ Paul W. Buchanan /s/ William L. Carpitella ____________________________________ William L. Carpitella /s/ Peter S. Reinhart ____________________________________ Peter S. Reinhart /s/ J/ Larry Sorsby ____________________________________ J. Larry Sorsby -1- -----END PRIVACY-ENHANCED MESSAGE-----