As filed with the Securities and Exchange Commission on January 27, 1998
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HOMEUSA, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 76-0546715
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
THREE RIVERWAY
SUITE 630
HOUSTON, TEXAS 77056
(713) 965-0520
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
HOMEUSA, INC.
1997 LONG-TERM INCENTIVE PLAN
HOMEUSA, INC.
1997 NON-EMPLOYEE DIRECTORS' STOCK PLAN
CARY N. VOLLINTINE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
HOMEUSA, INC.
THREE RIVERWAY
SUITE 630
HOUSTON, TEXAS 77056
(713) 965-0520
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
WITH COPIES TO:
WILLIAM D. GUTERMUTH
BRACEWELL & PATTERSON, L.L.P.
SOUTH TOWER, PENNZOIL PLACE
711 LOUISIANA STREET, SUITE 2900
HOUSTON, TEXAS 77002-2781
(713) 223-2900
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM PROPOSED AMOUNT OF
TITLE OF AMOUNT TO OFFERING MAXIMUM AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED(1)(2) PRICE PER SHARE(3) OFFERING PRICE(3) FEE
- -------------------------------------- ------------------- ------------------ ----------------- ------------
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Common Stock, par value $.01 per share 2,275,000 $8.50 $19,337,500 $5,705
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(1) Pursuant to Rule 457(h)(1), the registration fee is calculated with respect
to the maximum number of the registrant's securities issuable under the
HomeUSA, Inc. 1997 Long-Term Incentive Plan (the "Incentive Plan") and the
HomeUSA, Inc. 1997 Non-Employee Directors' Stock Plan (the "Director Plan")
(the Incentive Plan and Director Plan are collectively referred to herein as
the "Plans").
(2) The amount of securities registered hereby may exceed 2,275,000 shares of
Common Stock. The total number of shares of Common Stock subject to
incentive awards under the Director Plan is 275,000, subject to adjustment
from time to time as a result of certain anti-dilution provisions contained
in such plan. The total number of shares of Common Stock subject to
incentive awards under the Incentive Plan is the greater of (i) 2,000,000
and (ii) 15% of the total number of shares of Common Stock outstanding at
the time an incentive award is granted. In addition, the number of shares
issuable under the Incentive Plan is subject to adjustment from time to time
as a result of certain anti-dilution provisions contained in such plan.
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the
"Act"), this Registration Statement is deemed to cover these adjustments in
the total number of shares available under the Plans, which adjustments are
indeterminate at this time.
(3) Pursuant to Rule 457(c), the registration fee for these shares is calculated
based on the average of the high and low sales price per share of the Common
Stock, as reported by the New York Stock Exchange on January 20, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
HomeUSA, Inc., a Delaware company, ("the Company") hereby incorporates by
reference into this registration statement (the "Registration Statement"): (i)
the Company's prospectus filed pursuant to Rule 424(b) of the Securities Act of
1933, as amended, on December 22, 1997 as part of its Registration Statement on
Form S-1; (ii) the description of the Company's Common Stock contained in the
Company's Form 8-A, filed October 10, 1997; and (iii) all other reports filed by
the Company pursuant to Section 13(a) or 15(d) of the Securities and Exchange
Act of 1934, as amended, since December 31, 1996.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934, as
amended, subsequent to the filing 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
in this Registration Statement and to be a part hereof from the date of filing
of such documents.
The Company will provide, without charge, to each participant in the
Company's 1997 Long-Term Incentive Plan and 1997 Non-Employee Directors' Stock
Plan, on written or oral request of such person, a copy (without exhibits,
unless such exhibits are specifically incorporated by reference) of any or all
of the documents incorporated by reference pursuant to this Item 3. All such
requests should be directed to HomeUSA, Inc., Three Riverway, Suite 630,
Houston, Texas 77056, Attention: General Counsel, phone number (713) 965-0520.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") permits a
corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action.
In an action brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees, actually
and reasonably incurred in connection with the defense or settlement of such
action, and the corporation may not indemnify for amounts paid in satisfaction
of a judgment or in settlement of the claim. In any such action, no
indemnification may be paid in respect of any claim, issue or matter as to which
such person shall have been adjudged liable to the corporation except as
otherwise approved by the Delaware Court of Chancery or the court in which the
claim was brought. In any other type of proceeding, the indemnification may
extend to judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with such other proceeding, as well as to
expenses.
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner reasonably believed to
be in, or not opposed to, the best interests of the corporation and, in the case
of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. The statute contains additional limitations
applicable to criminal actions and to actions brought by or in the name of the
corporation. The determination as to whether an employee or agent (who is not
then a director or officer of the corporation) seeking
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indemnification has met the required standard of conduct may be made by any
person or persons having authority to act on the matter. The determination as to
whether a director or officer seeking indemnification has met the required
standard be made (1) by a majority vote of a quorum of disinterested members of
the board of directors, (or a committee thereof) (2) by independent legal
counsel in a written opinion, if such a quorum does not exist or if the
disinterested directors so direct, or (3) by the stockholders.
The Company's Certificate of Incorporation requires the Company to indemnify
its directors and officers to the fullest extent permitted by Section 145 of the
DGCL. In addition, the Company maintains liability insurance for its directors
and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 The HomeUSA, Inc. 1997 Incentive Plan (incorporated by reference to
the Company's Registration Statement on Form S-1 (File No.
333-35649), filed September 15, 1997)
4.2 The HomeUSA, Inc. 1997 Non-Employee Director Plan (incorporated by
reference to the Company's Registration Statement on Form S-1 (File
No. 333-35649), filed September 15, 1997)
5.1 Opinion of Bracewell & Patterson, L.L.P.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Coopers & Lybrand, L.L.P.
23.3 Consent of Bracewell & Patterson, L.L.P. (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page hereto)
ITEM 9. UNDERTAKINGS.
A. UNDERTAKING TO UPDATE
The undersigned registrant hereby undertakes:
(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;
(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 this 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 and of
the estimated maximum offering range may be reflected in
the form of a 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 percent
change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the
effective registration statement.
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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 this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (A)(1)(i) and (A)(1)(ii) of
this section do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act, that are
incorporated by reference in this 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.
B. UNDERTAKING WITH RESPECT TO DOCUMENTS INCORPORATED BY REFERENCE
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934
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.
C. UNDERTAKING WITH RESPECT TO INDEMNIFICATION
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 foregoing
provisions, 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 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.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURES
In accordance with 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 of filing on Form S-8 and has duly authorized
this Registration Statement to be signed on its behalf by the undersigned, in
the City of Houston, State of Texas on January 27, 1998.
HOMEUSA, INC.
By:/s/CARY N. VOLLINTINE
Cary N. Vollintine
PRESIDENT AND CHIEF EXECUTIVE OFFICER
We, the undersigned directors and officers of HomeUSA, Inc., constitute and
appoint Cary N. Vollintine or Michael N. Loy, or either of them, our true and
lawful attorneys and agents, to do any and all acts and things in our name and
on our behalf in our capacities as directors and officers, and to execute any
and all instruments for us and in our names in the capacities indicated below,
which said attorneys and agents, or either of them, may deem necessary or
advisable to enable said corporation to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of this Registration
Statement, including specifically without limitation, power and authority to
sign for any of us, in our names in the capacities indicated below, any and all
amendments hereto; and we do each hereby ratify and confirm all that the said
attorneys and agents, or either of them, shall 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 by the following persons in the
capacities and on the date indicated on January 27, 1998.
SIGNATURE TITLE
--------- -----
/s/ CARY N. VOLLINTINE Chairman of the Board, Chief Executive Officer and
Cary N. Vollintine President
/s/ MICHAEL N. LOY Senior Vice President, Chief Financial Officer and
Michael N. Loy Director (Chief Accounting Officer)
/s/ STEVEN S. HARTER Director
Steven S. Harter
/s/ LARRY T. SHAFFER Director
Larry T. Shaffer
/s/ GARY W. FORDHAM Director
Gary W. Fordham
/s/ DAVID E. THOMPSON Director
David E. Thompson
/s/ FRANK C. MCDONALD Director
Frank C. McDonald
/s/ HAROLD K. PATRICK Director
Harold K. Patrick
/s/ STANLEY POISSO Director
Stanley Poisso
/s/ RANDLE C. COOPER Director
Randle C. Cooper
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/s/ THOMAS N. AMONETT Director
Thomas N. Amonett
/s/ JAMES J. BLOSSER Director
James J. Blosser
/s/ STEPHEN F. SMITH Director
Stephen F. Smith
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EXHIBIT INDEX
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
4.1 The HomeUSA, Inc. 1997 Incentive Plan (incorporated by
reference to the Company's Registration Statement on Form
S-1 (File No. 333-35649), filed September 15, 1997).............
4.2 The HomeUSA, Inc. 1997 Non-Employee Director Plan
(incorporated by reference to the Company's Registration
Statement on Form S-1 (File No. 333-35649), filed
September 15, 1997).............................................
5.1 Opinion of Bracewell & Patterson, L.L.P.........................
23.1 Consent of Arthur Andersen LLP..................................
23.2 Consent of Coopers & Lybrand, L.L.P. ...........................
23.3 Consent of Bracewell & Patterson, L.L.P. (included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page hereto)......
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EXHIBIT 5.1
January 27, 1998
HomeUSA, Inc.
Three Riverway, Suite 630
Houston, Texas 77056
Ladies and Gentlemen:
We have acted as counsel to HomeUSA, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended, relating
to an aggregate of 2,275,000 shares (the "Shares") of the Company's common
stock, par value $.01 per share, to be offered upon the terms and subject to the
conditions set forth in the HomeUSA, Inc. 1997 Long-Term Incentive Plan and the
HomeUSA, Inc. 1997 Non-Employee Director Plan (the "Plans").
We have examined such corporate records, documents, instruments and
certificates of the Company and certificates of officers of the Company and have
considered such questions of law as we have deemed necessary, relevant or
appropriate to enable us to render the opinion expressed herein. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents, instruments, records and certificates submitted
to us as originals. We have not independently verified any matter of fact
relating to this opinion.
Based on such examination and review of the Company, we are of the opinion
that the Shares have been duly and validly authorized and will, on issuance and
delivery against payment therefor as contemplated by the Plans, be validly
issued, fully paid and nonassessable.
This firm consents to the filing of this opinion as an exhibit to the
Registration Statement. This opinion is delivered solely for your benefit and
may not be used or relied upon for any purpose by any other person or entity
without our express prior written authorization.
Very truly yours,
/s/BRACEWELL & PATTERSON, L.L.P.
Bracewell & Patterson, L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports included in
HomeUSA, Inc.'s registration statement on Form S-1 (No. 333-35649) and to all
references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Houston, Texas
January 27, 1997
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
form S-8 of HomeUSA, Inc. to be filed on or about January 27, 1998, of our
report dated October 24, 1997, on our audits of the financial statements of
McDonald Mobile Homes, Inc.
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Tulsa, Oklahoma
January 27, 1998
