Registration No. 33
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 Identification
of incorporation 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)
WASHINGTON HOMES
EMPLOYEE STOCK OPTION PLAN
(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
Title of Maximum Maximum
Security Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
---------- ---------- ------------ --------- ------------
Class A Common Stock,
$0.01 par value per
share 738,785 $10.485 $7,746,160.73 $1,936.54
[FN]
(1) 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 February
28, 2001.
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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 contained in the
Company's Registration Statement on Form 8-A dated November 24,
1992.
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.
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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.
Item 7. Exemption from Registration Claimed.
None.
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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 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
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
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(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 such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
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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 6th 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
---------- ------- -----
*Kervork S. Hovnanian Chairman of the Board March 6, 2001
------------------------
Kervork S. Hovnanian
*Ara K. Hovnanian Chief Executive Officer,
------------------------ President and Director March 6, 2001
Ara K. Hovnanian
*Paul W. Buchanan Senior Vice President
----------------------- Corporate Controller March 6, 2001
Paul W. Buchanan and Director
/s/ Peter S. Reinhart Senior Vice President, March 6, 2001
----------------------- General Counsel,
Peter S. Reinhart Secretary and Director
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*J. Larry Sorsby Executive Vice President, March 6, 2001
---------------------------- Chief Financial Officer
J. Larry Sorsby and Director
*Geaton A. DeCesaris President Homebuilding March 6, 2001
---------------------------- Operations, Chief
Geaton A. DeCesaris, Jr. Operating Officer
and Director
By /s/ Peter S. Reinhart March 6, 2001
-------------------------
*Attorney-in-fact
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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 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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