As filed with the Securities and Exchange Commission on March 15, 2002
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------
HOVNANIAN
ENTERPRISES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
22-1851059
(I.R.S. Employer Identification Number)
10 Highway 35
P.O. Box 500
Red Bank, New Jersey 07701
(732) 747-7800
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
------------------
J. Larry Sorsby
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 Agent For Service)
------------------
Copies to:
Vincent Pagano, Jr., Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement.
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. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please 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. |_|
CALCULATION OF REGISTRATION FEE
======================================================== ================= =============== ================= ===============
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount Of
Amount To Be Price Per Offering Price Registration
Title Of Shares To Be Registered Registered Unit (1) (1) Fee (1)
-------------------------------- ---------- -------- --- ---
Class A Common Stock 2,208,738 $26.175 $57,813,717.15 $5,319.00
======================================================== ================= =============== ================= ===============
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended. The
proposed maximum offering price per unit, 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 New York Stock Exchange on March 13, 2002.
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.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with
the Securities and Exchange Commission. These securities may not be sold
nor may offers to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall there be
any sale of these securities in any state in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such state.
Subject to Completion, dated March 15, 2002
PROSPECTUS
[Logo]
2,208,738 Shares
Hovnanian Enterprises, Inc.
Class A Common Stock
------------------
All of the Class A common stock offered hereby may be sold from time to
time by and for the account of the selling shareholder named in this
prospectus.
The methods of sale of the Class A common stock offered hereby are
described under the heading "Plan of Distribution". We will receive none of
the proceeds from such sales. We will pay all expenses, including brokerage
expenses, fees and discounts and commissions, incurred in connection with the
offering described in this prospectus.
The selling shareholder and any broker-dealers that participate in the
distribution of the Class A common stock offered hereby may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"). As a result, any commission or profit on the resale of
shares received by such broker-dealers may be deemed to be underwriting
commissions and discounts under the Securities Act. Upon being notified by the
selling shareholder that any material arrangement has been entered into with a
broker-dealer for the sale of the shares through a secondary distribution or a
purchase by a broker-dealer, a supplemental prospectus will be filed, if
required, disclosing among other things, the names of such broker-dealers, the
number of shares involved, the price at which such shares are being sold and
the commissions paid or the discounts or concessions allowed to such
broker-dealers.
The Class A common stock of the Company is listed on the New York Stock
Exchange (Symbol: HOV). On March 14, 2002, the closing price of the Class A
common stock was $25.00 per share.
These securities have not been approved or disapproved by the Securities and
Exchange Commission or any state securities commission nor have those
organizations determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
------------------
The date of this prospectus is March ___, 2002
Table of Contents
Page
FORWARD-LOOKING STATEMENTS.................................................2
AVAILABLE INFORMATION......................................................2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................2
THE COMPANY................................................................3
USE OF PROCEEDS............................................................3
SELLING SHAREHOLDER........................................................3
PLAN OF DISTRIBUTION.......................................................4
LEGAL MATTERS..............................................................5
EXPERTS....................................................................5
FORWARD-LOOKING STATEMENTS
All statements in this registration statement, this prospectus and
the information incorporated by reference, including the financial statements
and their accompanying notes, that are not historical facts should be
considered as "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. Such statements involve known and
unknown risks, uncertainties and other factors that may cause actual results
to differ materially. Such risks, uncertainties and other factors include, but
are not limited to, changes in general economic conditions, fluctuations in
interest rates, increases in raw materials and labor costs, levels of
competition and other facts described in detail in our form 10-K for the year
ended October 31, 2001.
AVAILABLE INFORMATION
We have filed with the Securities and Exchange Commission, the
"Commission", a registration statement on Form S-3. This prospectus, which
forms part of the registration statement, does not have all the information
contained in the registration statement. Statements in this prospectus as to
the contents of any contract or other document are not necessarily complete
and, where a contract or other document is an exhibit to the registration
statement, or was previously filed with the Commission and is now incorporated
by reference, each statement is qualified in all respects by the provision in
the exhibit to which reference is hereby made. A copy of the registration
statement may be inspected by anyone without charge at the Commission's
principal office at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies
of all or any part of the registration statement may be obtained from the
Commission upon payment of certain fees prescribed by the Commission.
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and file reports, proxy statements and other
information with the Commission. You may read and copy any reports, proxy
statements and other information at the Commission's Public Reference Room at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and
at its regional office located at 500 West Madison Street, 14th Floor,
Chicago, Illinois 60661. The public may obtain information on the operation of
the Public Reference Room by calling the Commission at 1-800-SEC-0330. Copies
of this material also can be obtained by mail from the Public Reference
Section of the Commission, at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, at the prescribed rates. The Commission also
maintains a website that contains reports, proxy and information statements
and other information. The website address is: http://www.sec.gov. Hovnanian's
Class A common stock is listed on the New York Stock Exchange, and reports,
proxy statements and other information can also be inspected at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We have filed the following documents with the Commission and these
documents are incorporated herein by reference:
o Annual Report on Form 10-K for the fiscal year ended October 31,
2001, Registration File No. 1-8551;
o Quarterly Report on Form 10-Q for the quarter ended January 31,
2002, Registration File No. 1-8551;
o The description of the Company's Class A common stock, par value
$.01 per share, set forth in the Company's Registration Statement on
Form 8-A filed March 13, 2001, and any amendment or report filed for
the purpose of updating any such description, Registration File No.
1-8551; and
o Current Report on Form 8-K filed January 24, 2002, as amended by
Current Report on Form 8-K/A filed February 19, 2002, Registration
File Nos. 1-8551.
Each document filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to
the date of this prospectus and prior to the termination of the offering of
the Class A common stock pursuant hereto shall be deemed to be incorporated by
reference in this prospectus and to be a part of this prospectus from the date
of filing of such document. Any statement contained in this prospectus or in a
document incorporated or deemed to be incorporated by reference in this
prospectus shall be deemed to be modified or superseded for purposes of the
registration statement and this prospectus to the extent that a statement
contained in this prospectus or in any subsequently filed document that also
is or is deemed to be incorporated by reference in this prospectus modifies or
2
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
the registration statement or this prospectus.
Hovnanian will provide without charge to each person, including any
beneficial owner, to whom a copy of this prospectus is delivered, upon the
written or oral request of that person, a copy of any or all of the
information incorporated by reference in this prospectus but not delivered
with this prospectus, other than exhibits to such information, unless the
exhibits are specifically incorporated by reference into the information that
this prospectus incorporates. Requests for copies should be directed to Paul
W. Buchanan, Senior Vice President--Corporate Controller, Hovnanian
Enterprises, Inc., 10 Highway 35, P.O. Box 500, Red Bank, New Jersey 07701
(telephone: (732) 747-7800).
THE COMPANY
We design, construct and market high quality single-family detached
homes and attached condominium apartments and townhouses in planned
residential developments in the Northeast, primarily in New Jersey, southern
New York state and eastern Pennsylvania, North Carolina, Metro D.C., which
includes northern Virginia and Maryland, California, Texas, Tennessee, Alabama
and Mississippi and provide mortgage banking and title insurance activities.
We market our homes to first-time buyers, first-time and second-time move-up
buyers, luxury buyers, active adult buyers and empty nesters.
Hovnanian was originally incorporated in New Jersey in 1967 as
successor to a business founded in 1959 by Kevork S. Hovnanian and became a
Delaware corporation in August 1983. Hovnanian maintains its executive offices
at 10 Highway 35, P.O. Box 500, Red Bank, New Jersey 07701 and its telephone
number is (732) 747-7800.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares
offered by the selling shareholder.
SELLING SHAREHOLDER
The selling shareholder listed below received shares as part of the
consideration in connection with our acquisition of the California
homebuilding operations of The Forecast Group(R), L.P. ("Forecast").
The following table states the number of shares of our outstanding
Class A common stock that the selling shareholder owns as a result of issuance
of our Class A common stock to the selling shareholder in connection with our
acquisition of the California homebuilding operations of Forecast, the percent
of Class A common stock owned by the selling shareholder, the number of shares
of Class A common stock that may be sold for the account of the selling
shareholder, the number of shares that will be owned by the selling
shareholder assuming the sale of all the shares offered hereby and the percent
of Class A common stock that will be owned by the selling shareholder assuming
the sale of all the shares offered hereby.
3
Number of
Number of Shares of Class Percent of
Number of Percent of Shares of Class A common Class A
Shares of Class Class A A common stock common stock
A common common stock stock to Owned After Owned After
Selling Shareholder stock Owned(2) Owned(3) be Sold Sale Sale(3)
------------------- -------------- -------- ------- ---- -------
The Forecast Group(R), L.P. (1) 2,208,738 9.66% 2,208,738 0 0%
---------- ------ ---------- ----- -----
Total 2,208,738 9.66% 2,208,738 0 0%
========== ====== ========== ===== =====
(1) Forecast(R)Homes, Inc. is the general partner of The Forecast Group(R),
L.P. and James P. Previti is the owner of Forecast(R) Homes, Inc.
(2) Based upon the number of shares of Class A common stock owned by the
selling shareholder as reported on its Schedule 13G filed March 8, 2002.
(3) Based upon 22,856,444 shares of Class A common stock outstanding on
January 18, 2002, the record date for Hovnanian's 2002 annual meeting.
PLAN OF DISTRIBUTION
We have been advised that the distribution of the Class A common
stock by the selling shareholder may be effected from time to time in one or
more transactions (which may involve block transactions) (1) on the New York
Stock Exchange in transactions that may include special offerings and exchange
distributions pursuant to and in accordance with the rules of such exchange,
(2) in the over-the-counter market, (3) in transactions otherwise than on such
exchange or in the over-the-counter market or (4) through the writing of
options, or in a combination of any such transactions. Such transactions may
be effected by the selling shareholder at market prices prevailing at the time
of sale, at varying prices determined at the time of sale, at negotiated
prices or at fixed prices. The selling shareholder may effect such
transactions by selling the Class A common stock to or through broker-dealers
and such broker-dealers will receive compensation in the form of discounts or
commissions and may receive commissions from the purchasers of the Class A
common stock for whom they may act as agent (which commissions are not
expected to exceed those customary in the type of transactions involved).
Under the terms of the Asset Purchase Agreement entered into among Forecast,
James P. Previti and Hovnanian in connection with Hovnanian's acquisition of
the California homebuilding operations of Forecast, Hovnanian has agreed to
pay for (1) discounts and commissions received by broker-dealers through which
the selling shareholder sells Class A common stock (which discounts and
commissions are not expected to exceed those customary in the type of
transactions involved) and (2) out-of-pocket costs, broker-dealers' discounts
and commissions, filing fees, auditing fees and other related transaction
costs, fees and expenses incurred by the selling shareholder in connection
with any unusual transaction for the sale of the Class A common stock if such
sale transaction is proposed by Hovnanian.
The selling shareholder may also effect such transactions by selling
the Class A common stock to or through underwriters who will acquire shares
for their own account and resell them in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale.
In addition, any shares covered by this prospectus that qualify for
sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144
of the Securities Act rather than pursuant to this prospectus.
Offers to purchase shares of Class A common stock may also be
solicited by agents designated by the selling stockholder from time to time.
In connection with the distribution of the Class A common stock or
otherwise, the selling stockholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Class A common
stock and deliver Class A common stock to close out such short positions, or
loan or pledge Class A common stock to broker-dealers that in turn may sell
such securities.
4
Any broker-dealers that participate with the selling shareholder in
the distribution of the Class A common stock may be deemed to be
"underwriters" within the meaning of the Securities Act, and any commissions
or discounts received by such broker-dealers and any profit on the resale of
the Class A common stock by such broker-dealers might be deemed to be
underwriting discounts and commissions under such act.
In connection with sales of Class A common stock or otherwise, the
undersigned may enter into hedging transactions with broker-dealers, which may
in turn engage in short sales of Class A common stock and deliver Class A
common stock to close out such short positions, or loan or pledge Class A
common stock to broker-dealers that in turn may sell such Class A common
stock.
Upon being notified by the selling shareholder that any material
arrangement has been entered into with a broker-dealer for the sale of the
Class A common stock through a secondary distribution, or a purchase by a
broker-dealer, a supplemented prospectus will be filed, if required, pursuant
to Rule 424(b) under the Securities Act, disclosing:
o The names of such broker-dealers;
o The number of shares involved;
o The price at which such shares are being sold;
o The commission paid or the discounts or concessions allowed to such
broker-dealer;
o Where applicable, that such broker-dealers did not conduct any
investigation to verify the information set out or incorporated by
reference in this prospectus, as supplemented; and
o Other facts material to the transaction.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Class A
common stock will be passed upon for us by Simpson Thacher & Bartlett, New
York, New York.
EXPERTS
The consolidated financial statements of Hovnanian Enterprises, Inc.
appearing in Hovnanian's Annual Report (Form 10-K), for the year ended October
31, 2001, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
5
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses payable by Hovnanian in connection with the
offering described in this registration statement are as follows:
Total(a)
--------
Registration Fee...................................... $5,319.00
Legal fees and expenses............................... 35,000.00
Accounting fees and expenses.......................... 10,000.00
Printing and duplicating expenses..................... 5,000.00
Miscellaneous expenses................................ 4,681.00
Total.............................................. $60,000.00
- --------------------
(a) All figures, except the SEC registration fee, are estimates.
Item 15. 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 a 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 of care.
Article EIGHTH of Hovnanian's Restated 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 16. Item 16. Exhibits.
See Exhibit Index.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
II-1
(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, as amended (the "Securities 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 the 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;
(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 paragraph (1)(i) and (1)(ii) above do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference in the 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.
(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.
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 Section 15(d) of the
Securities Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
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.
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 provisions set forth in response to Item 15,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange 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.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 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, State of New
Jersey, on March 15, 2002.
Hovnanian Enterprises, Inc.
By: /s/ J. Larry Sorsby
-------------------------------
J. Larry Sorsby
Executive Vice President
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints J. Larry Sorsby and Paul W. Buchanan and each of them, the true and
lawful attorneys-in-fact and agents of the undersigned, with full power of
substitution and resubstitution, for and in the name, place and stead of
undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement,
including any filings pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and to file the same, with all exhibits thereto, and all
other documents in connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and
anything necessary to be done, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute, or substitutes, may lawfully do or cause to be done by virtue
hereof.
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 on March 15, 2002.
Signature Title
/s/ Kevork S. Hovnanian Chairman of the Board and Director
- -----------------------------------
Kevork S. Hovnanian
/s/ Ara K. Hovnanian President, Chief Executive Officer
- ----------------------------------- and Director
Ara K. Hovnanian
/s/ Paul W. Buchanan Senior Vice President--Corporate
- ----------------------------------- Controller and Director
Paul W. Buchanan
/s/ Geaton A. DeCesaris, Jr. President of Homebuilding
- ----------------------------------- Operations and Chief
Geaton A. DeCesaris, Jr. Operating Officer and Director
/s/ Arthur M. Greenbaum Director
- ----------------------------------
Arthur M. Greenbaum
II-3
/s/ Desmond P. McDonald Director
- ----------------------------------
Desmond P. McDonald
/s/ Peter S. Reinhart Senior Vice-President,
- ---------------------------------- General Counsel/Secretary and
Peter S. Reinhart Director
/s/ John J. Robbins Director
- ----------------------------------
John J. Robbins
/s/ J. Larry Sorsby Executive Vice President,
- ---------------------------------- Chief Financial Officer
J. Larry Sorsby and Director
/s/ Stephen D. Weinroth Director
- ----------------------------------
Stephen D. Weinroth
II-4
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibits
2.1 - Asset Purchase Agreement, dated as of January 4, 2002, by and
among The Forecast Group(R), L.P., James P. Previti and
Hovnanian (incorporated by reference to Exhibit 2(a) of
Hovnanian's annual report of Form 10-K for the year ended
October 31, 2001).
2.2 - Securities Purchase Agreement, dated as of January 4, 2002, by
and among Forecast Homes, Inc., Forecast PP2, LLC, James P.
Previti and Hovnanian (incorporated by reference to Exhibit
2(b) of Hovnanian's annual report of Form 10-K for the year
ended October 31, 2001).
4.1 - Certificate of Incorporation of Hovnanian (incorporated by
reference to Exhibit 3(a) of Hovnanian's annual report on Form
10-K for the year ended February 28, 1993).
4.2 - Certificate of Amendment of Certificate of Incorporation of
Hovnanian (incorporated by reference to Exhibit 3(b) of
Hovnanian's annual report on Form 10-K for the year ended
February 28, 1993).
4.3 - By-laws of Hovnanian (incorporated by reference to Exhibit 3.2
of Hovnanian's Registration Statement on Form 8-A filed on
March 13, 2001).
4.4 - Specimen Class A common stock Certificate (filed herewith).
5.1 - Opinion of Simpson Thacher & Bartlett (filed herewith).
23.1 - Consent of Ernst & Young LLP (filed herewith).
23.2 - Consent of Simpson Thacher & Bartlett (included in Exhibit 5.1).
24.1 - Powers of Attorney of Board of Directors of Hovnanian (included
on signature page).
II-5
Exhibit 4.4
NUMBER SHARES
------ [LOGO of K HOVNANIAN COMPANIES] ------
A_________________ ____________________________________
CLASS A COMMON STOCK INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE CUSIP 442487 20 3
SEE REVERSE FOR CERTAIN DEFINITIONS
Hovnanian Enterprises, Inc.
THIS CERTIFICATE IS TRANSFERABLE IN CANTON,
MA, JERSEY CITY, NJ, OR NEW YORK, NY
THIS IS TO CERTIFY that
- -------------------------------------------------------------------------------
Is the owner of
FULLY PAID AND NONASSESSABLE SHARES OF THE PAR VALUE OF $.01 EACH OF
THE CLASS A COMMON STOCK OF Hovnanian Enterprises, Inc. transferable on the
books of the Corporation by the holder hereof in person or by duly authorized
attorney upon surrender of this certificate properly endorsed. This
certificate, and the shares represented hereby, are issued and shall be
subject to all of the provisions of the Certificate of Incorporation and of
the amendments thereof, to all of which the holder, by acceptance hereof,
assents. This certificate is not valid unless courtersigned and registered by
the Transfer Agent and Registrar.
IN WITNESS WHEREOF, the Corporation has caused this certificate
to be signed by its duly authorized officers and a facsimile of its
corporate seal to be hereunto imprinted.
Dated ___________________________
Attest: ___________________________ By ____________________________
[CORPORATE SEAL]
Secretary ___________________________ Chairman _______________________
COUNTERSIGNED AND REGISTERED
EquiServe Trust Company, N.A TRANSFER AGENT
AND REGISTRAR
BY ________________________________
AUTHORIZED OFFICER
The Company will furnish to any stockholder, upon request to its
principal office or to any of its transfer offices and without charge, a full
statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock of the
Company, or series thereof, and the qualifications, limitations or
restrictions of such preferences and/or rights.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM --as tenants in common UNIF GIFT MIN ACT-- .....Custodian......
(Cust) (Minor)
TEN ENT --as tenants by the entireties under Uniform Gifts to Minors
Act..........................
JT TEN --as joint tenants with right (State)
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above
list.
For value received, ......................hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
...............................................................................
...............................................................................
........................................................................ Shares
of the Capital Stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint.............................................
...............................................................................
Attorney to transfer the said stock on the books of the within-named
Corporation with full power of substitution in the premises.
Dated:....................................
...............................................................................
NOTICE: The signature of this assignment must correspond with the
name as written upon the face of the Certificate, in every particular, without
alteration or enlargement, or any change whatever.
Exhibit 5.1
OPINION OF SIMPSON THACHER & BARTLETT
[SIMPSON THACHER & BARTLETT LETTERHEAD]
March 15, 2002
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-3 (the "Registration Statement") filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), relating to the sale by The Forecast
Group(R), L.P. of an aggregate of 2,208,738 shares of the Company's Class A
common stock, par value $.01 per share (collectively, the "Shares"), in
connection with (1) the Asset Purchase Agreement, dated as of January 4, 2002,
by and among The Forecast Group(R), L.P., a California limited partnership
("Forecast"), James P. Previti, an individual ("Previti"), and the Company and
(2) the Securities Purchase Agreement, dated as of January 4, 2002, by and
among Forecast Homes, Inc., a California corporation, Forecast PP2, LLC, a
Delaware limited liability company, Previti and the Company, pursuant to which
the Company acquired the California homebuilding operations of Forecast.
We have examined the Registration Statement and a form of the share
certificate, which has been filed with the Commission as an exhibit to the
Registration Statement. We also have 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 genuiness 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 the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that the Shares have been
duly authorized and are 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 Exhibit 5
to the Registration Statement and to the use of our name under the caption
"Legal Matters" in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related prospectus of Hovnanian
Enterprises, Inc. (the "Company") for the registration of 2,208,738 shares of
its Class A common stock and to the incorporation by reference therein of our
report dated December 11, 2001, with respect to the consolidated financial
statements of the Company included in its Annual Report (Form 10-K) for the
year ended October 31, 2001, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
New York, New York
March 13, 2002