As filed with the Securities and Exchange Commission on July 2, 2003
Registration No.
______________________________________________________________________________
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
incorporation or 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)
1999 Hovnanian Enterprises, Inc.
Stock Incentive Plan
(As Amended and Restated)
Hovnanian Enterprises, Inc.
Senior Executive Short-Term Incentive Plan
(as Amended and Restated)
(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 LLP
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered Per Share Offering Price Fee
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Class A Common Stock, $0.01 par value per share 5,500,000 58.23(a) $320,265,000(a) $25,888
Class B Common Stock, $0.01 par value per share 5,500,000 58.23(b) $320,265,000(b) $25,888
- --------------------------------------------------------------------------------------------------------------------
(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 New York Stock Exchange on July 1, 2003.
(b) In accordance with the 1999 Hovnanian Enterprises, Inc. Stock Incentive
Plan (As Amended and Restated) and the Hovnanian Enterprises, Inc. Senior
Executive Short-Term Incentive Plan (As Amended and Restated) (the
"Plans") the maximum aggregate number of shares of Class A Common Stock
and Class B Common Stock to be issued will be 5,500,000 shares. If at any
time the Plans are amended to authorize the issuance of additional shares,
the Registrant will file a new Form S-8 Registration Statement for such
shares.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the Registrant's Deferred
Compensation Plans, the awards of which will be issued under the Plans
described herein.
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 the "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. Annual Report on Form 10-K for the fiscal year ended October 31,
2002, Registration File No. 1-08551.
2. Quarterly Report on Form 10-Q for the quarter ended January 31,
2003, Registration File No. 1-08551.
3. Quarterly Report on Form 10-Q for the quarter ended April 30, 2003,
Registration File No. 1-08551.
4. The Proxy Statement filed on August 21, 1992 contains the
description of the Company's Class A Common Stock and Class B
Common Stock.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 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 which indicates 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.
Item 6. Indemnification of Directors and Officers.
The Company 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 care.
Article EIGHTH of the Company'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.
The Company 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.
Item 8. Exhibits.
4.1 Certificate of Incorporation of the Company (incorporated by
reference to Exhibits to the Company's Registration
Statement on Form S-1, Registration File No. 2-85198).
4.2 Certificate of Amendment of Certificate of Incorporation of
the Company (incorporated by reference to Exhibits to the
Company's Annual Report on Form 10-K for the year ended
February 28, 1994).
4.3 By-laws of the Company (incorporated by reference to Exhibits
to the Company's Annual Report on Form 10-K for the
year ended February 28, 1994).
5.1 Opinion of Simpson Thacher & Bartlett LLP (filed herewith).
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Simpson Thacher & Bartlett LLP (contained in
Exhibit 5.1 filed herewith).
24.1 Powers of Attorney (included on signature page).
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
a 20% 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 with
or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
that are incorporated by reference in the Registration Statement.
(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
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Hovnanian
Enterprises, Inc. 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, state of New Jersey, on
this 2nd day of July 2003.
HOVNANIAN ENTERPRISES, INC.
By: /s/ Peter S. Reinhart
----------------------------------
Peter S. Reinhart
Senior Vice President and
General Counsel
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 the
undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement on Form
S-8, 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 in virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- -----
/s/ Kevork S. Hovnanian
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Kevork S. Hovnanian Chairman of the Board July 2, 2003
/s/ Ara K. Hovnanian
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Ara K. Hovnanian President, Chief Executive
Officer and Director July 2, 2003
- -------------------------
Geaton A. DeCesaris, Jr. President of Homebuilding
Operations and Chief Operating
Officer and Director
/s/ Arthur M. Greenbaum
- -------------------------
Arthur M. Greenbaum Director July 2, 2003
- -------------------------
Edward A. Kangas Director
/s/ Desmond P. McDonald
- -------------------------
Desmond P. McDonald Director July 2, 2003
- -------------------------
John J. Robbins Director
/s/ J. Larry Sorsby
- -------------------------
J. Larry Sorsby Executive Vice-President and Chief
Financial Officer and Director July 2, 2003
- -------------------------
Stephen D. Weinroth Director
/s/ Paul W. Buchanan
- -------------------------
Paul W. Buchanan Senior Vice President and Corporate
Controller July 2, 2003
INDEX TO EXHIBITS
Exhibit
Number Description
4.1 Certificate of Incorporation of the Company (incorporated by
reference to Exhibits to the Company's Registration Statement
on Form S-1, Registration File No. 2-85198).
4.2 Certificate of Amendment of Certificate of
Incorporation of the Company (incorporated by
reference to Exhibits to the Company's Annual
Report on Form 10-K for the year ended February
28, 1994).
4.3 By-laws of the Company (incorporated by
reference to Exhibits to the Company's Annual
Report on Form 10-K for the year ended February
28, 1994).
5.1 Opinion of Simpson Thacher & Bartlett LLP (filed herewith).
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Simpson Thacher & Bartlett LLP (contained in
Exhibit 5.1 filed herewith).
24.1 Powers of Attorney (included on signature page).
Exhibit 5.1
July 2, 2003
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 and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), relating to 5,500,000 Shares of Class A
Common Stock, par value $0.01 per share, and 5,500,000 Shares of Class B
Common Stock, par value $0.01 per share, of the Company (collectively, the
"Shares"), in connection with the 1999 Hovnanian Enterprises, Inc. Stock
Incentive Plan (as Amended and Restated) and the Hovnanian Enterprises, Inc.
Senior Executive Short-Term Incentive Plan (as Amended and Restated)
(collectively, the "Plans").
We have examined copies of the Plans, the Registration Statement
(including the exhibits thereto) and forms of the share certificates. 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 opinion 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 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 when appropriate action
has been taken by the Compensation Committee of the Board of Directors of the
Company or, in the case of the Hovnanian Enterprises, Inc. Senior Executive
Short-Term Incentive Plan, any other committee designated by the Board of
Directors of the Company, and when such Shares have been awarded, granted or
issued to participants in the Plans ("Participants"), or issued upon exercise
of options granted to Participants, in each case in accordance with the
provisions of the Plans, any Shares to be so awarded, granted 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 Exhibit 5
to the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett LLP
SIMPSON THACHER & BARTLETT LLP
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8), pertaining to the 1999 Stock Incentive Plan and Senior Executive
Short-Term Incentive Plan of Hovnanian Enterprises, Inc., of our report dated
December 6, 2002 (except Note 20, as to which the date is December 31, 2002),
with respect to the consolidated financial statements of Hovnanian
Enterprises, Inc. included in its Annual Report (Form 10-K) for the year ended
October 31, 2002, filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
New York, New York
June 26, 2003
