AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 7, 1998
REGISTRATION NO. 333-42885
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
T0
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HOMEUSA, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 5271 76-0546715
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL IDENTIFICATION NUMBER)
INCORPORATION OR CLASSIFICATION CODE
ORGANIZATION) NUMBER)
CARY N. VOLLINTINE
CHIEF EXECUTIVE OFFICER
THREE RIVERWAY
SUITE 630
HOUSTON, TEXAS 77056
(713) 965-0520
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES AND AGENT FOR SERVICE)
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COPY TO:
WILLIAM D. GUTERMUTH
BRACEWELL & PATTERSON, L.L.P.
SOUTH TOWER PENNZOIL PLACE
711 LOUISIANA STREET, SUITE 2900
HOUSTON, TEXAS 77002-2781
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
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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, 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. [ ]
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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Company in connection
with the sale of the securities being registered. In connection with future
acquisitions, additional printing, legal, accounting and miscellaneous expenses
are expected to be incurred with respect to the issuance and distribution of the
securities being registered hereby. All amounts are estimates except for the
fees payable to the SEC.
AMOUNT TO
BE PAID
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SEC registration fee.................... $ 46,093.75
Printing expenses....................... $ 10,000
Legal fees and expenses................. $ 25,000
Accounting fees and expenses............ $ 25,000
Transfer Agent's and Registrar's fees... $ 1,000
Miscellaneous........................... $ 10,700
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TOTAL.............................. $ 117,793.75
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ITEM 14. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Company's Certificate of Incorporation, as amended, and Bylaws
incorporate substantially the provisions of the Delaware General Corporation Law
("DGCL") providing for indemnification of directors and officers of the
Company against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding arising by
reason of the fact that such person is or was an officer or director of the
Company or is or was serving at the request of the Company as a director,
officer or employee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise.
As permitted by Section 102 of the DGCL, the Company's Certificate of
Incorporation, as amended, contains provisions eliminating a director's personal
liability for monetary damages to the Company and its stockholders arising from
a breach of a director's fiduciary duty except for liability (a) for any breach
of the director's duty of loyalty to the Company or its stockholders, (b) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the DGCL, or (d) for any
transaction from which the director derived an improper personal benefit.
Section 145 of the DGCL provides generally that a person sued as a
director, officer, employee or agent of a corporation may be indemnified by the
corporation for reasonable expenses, including attorneys' fees, if in the case
of other than derivative suits such person has acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation (and, in the case of a criminal proceeding, had no
reasonable cause to believe that such person's conduct was unlawful). In the
case of a derivative suit, an officer, employee or agent of the corporation
which is not protected by the Certificate of Incorporation may be indemnified by
the corporation for reasonable expenses, including attorneys' fees, if such
person has acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made in the case of a derivative suit in respect of any
claim as to which an officer, employee or agent has been adjudged to be liable
to the corporation unless that person is fairly and reasonably entitled to
indemnity for proper expenses. Indemnification is mandatory in the case of a
director or officer who is successful on the merits in defense of a suit against
such person.
The Company has entered into Indemnity Agreements with its directors and
certain key officers pursuant to which the Company generally is obligated to
indemnify its directors and such officers to the full extent permitted by the
DGCL as described above.
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The Company has purchased liability insurance policies covering directors
and officers in certain circumstances.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
On July 3, 1996, HomeUSA issued and sold 1,000 shares of Common Stock to
Notre for a consideration of $1,000. This sale was exempt from registration
under Section 4(2) of the Securities Act, no public offering being involved.
On October 8, 1996 HomeUSA issued and sold 19,325.96 shares of Common Stock
to Notre for a consideration of $17,439. This sale was exempt from registration
under Section 4(2) of the Securities Act, no public offering being involved.
On January 15, 1997, HomeUSA issued and sold shares of Common Stock to the
following parties in the amounts and for the consideration indicated. These
sales were exempt from registration under Section 4(2) of the Securities Act no
public offering being involved: Cary N. Vollintine -- 1,766.3 shares for a
consideration of $1,602.26; Willie Thurman Langston II -- 126.16 shares for a
consideration of $114.45; Kevin J. Lilly -- 63.07 shares for a consideration of
$57.22; Robert P. Gauntt -- 63.07 shares for a consideration of $57.22; and
WillMax Capital Inc. -- 2,270.96 shares for a consideration of $2,060.05.
On May 10, 1997, HomeUSA issued and sold shares of Common Stock to the
following parties in the amounts and for the consideration indicated. These
sales were exempt from registration under Section 4(2) of the Securities Act, no
public offering being involved: Cary N. Vollintine -- 2,204.76 shares for a
consideration of $2,000.00; Frank W. Montfort -- 1,212.62 shares for a
consideration of $1,100.00; Philip Campbell -- 551.19 shares for a consideration
of $500.00; Michael F. Loy -- 1,102.38 shares for a consideration of $1,000;
Philip C. deMena -- 1,102.38 shares for a consideration of $1,000.00; Richard T.
Howell -- 110.23 shares for a consideration of $100.00; Jennifer
Jackson -- 110.23 shares for a consideration of $100.00; Melinda A.
Malek -- 11.02 shares for a consideration of $10.00; Stephen Baur -- 440.95
shares for a consideration of $400.00; Shellie Gray LePori -- 275.59 shares for
a consideration of $250.00; Infoscope, Inc. -- 44.09 shares for a consideration
of $40.00; Susan Yancey -- 5.51 shares for a consideration of $5.00; Jennifer G.
Davidson -- 5.51 shares for a consideration of $5.00; John R. Oren -- 551.19
shares for a consideration of $500.00; Steven J. Blum -- 110.23 shares for a
consideration of $100.00; Willie Thurman Langston II -- 165.35 shares for a
consideration of $150.00; Kevin J. Lilly -- 82.67 shares for a consideration of
$75.00; Robert P. Gauntt -- 82.67 shares for a consideration of $75.00; Kenneth
V. Garcia -- 110.23 shares for a consideration of $100.00 and Karl V.
Baumgartner -- 55.11 shares for a consideration of $50.00.
On August 1, 1997, HomeUSA issued and sold shares of Common Stock to the
following parties in the amounts and for the consideration indicated. These
sales were exempt from registration under Section 4(2) of the Securities Act, no
public offering being involved: Donald D. Moseley -- 551.19 shares for a
consideration of $500.00; Don A. Palmour -- 551.19 shares for a consideration of
$500.00; Cary N. Vollintine -- 220.47 shares for a consideration of $200.00;
Frank W. Montfort -- 121.26 shares for a consideration of $110.00; Philip
Campbell -- 55.11 shares for a consideration of $50.00; Michael F. Loy -- 110.23
shares for a consideration of $100; Philip C. deMena -- 110.23 shares for a
consideration of $100.00; Stephen F. Smith -- 110.23 shares for a consideration
of $100.00; Thomas N. Amonett -- 110.23 shares for a consideration of $100.00
and James J. Blosser -- 110.23 shares for a consideration of $100.00.
Effective August 1, 1997, HomeUSA effected a 90.7127-to-one stock dividend
on shares of Common Stock issued on and as of August 1, 1997.
Effective August 1, 1997, HomeUSA issued 1,718,823 shares of Restricted
Common Stock to Notre in exchange for 1,718,823 shares of Common Stock. This
issuance was exempt from registration under Section 4(2) of the Securities Act,
no public offering being involved.
On November 21, 1997, the Company issued 7,266,944 shares of its Common
Stock in connection with the Mergers of the Founding Companies. Each of these
transactions was completed without registration under the Securities Act in
reliance upon the exemption provided by Section 4(2) of the Securities Act.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
INCORPORATED BY
REFERENCE TO THE
EXHIBIT INDICATED
BELOW AND TO THE
FILING WITH THE
COMMISSION INDICATED
BELOW
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EXHIBIT EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT NUMBER FILE NUMBER
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<C> <S> <C> <C>
3.1 -- Amended and Restated Certificate of Incorporation of HomeUSA, Inc., as 3.1 323-35649
amended
3.2 -- Bylaws of HomeUSA, Inc., as amended 3.2 323-35649
+4.1 -- Form of certificate evidencing ownership of Common Stock of HomeUSA,
Inc.
+5.1 -- Opinion of Bracewell & Patterson, L.L.P.
10.1 -- HomeUSA, Inc. 1997 Long-Term Incentive Plan 10.1 323-35649
10.2 -- HomeUSA, Inc. 1997 Non-Employee Directors' Stock Plan 10.2 323-35649
10.3 -- Agreement and Plan of Organization dated as of September 10, 1997, by 10.3 323-35649
and among HomeUSA, Inc., McDonald Homes Acquisition Corp., McDonald
Homes, Inc. and the Stockholders named therein
10.4 -- Agreement and Plan of Organization dated as of September 10, 1997, by 10.4 323-35649
and among HomeUSA, Inc., Universal Housing Acquisition Corp., Universal
Housing of East Tennessee Acquisition Corp., Shaffer & Webb Insurance
Agency Acquisition Corp., Universal Housing, Inc., Universal Housing of
East TN, Inc., Shaffer & Webb Insurance Agency, Inc. and the
Stockholders named therein
10.5 -- Agreement and Plan of Organization dated as of September 10, 1997, by 10.5 323-35649
and among HomeUSA, Inc., First American Homes Acquisition Corp., D & S
Acquisition Corp., Son Development Acquisition Corp., First American
Homes, Inc., D&S, Inc., Son Development Corporation and the
Stockholders named therein
10.6 -- Agreement and Plan of Organization dated as of September 10, 1997, by 10.6 323-35649
and among HomeUSA, Inc., Mobile World Acquisition Corp., Showcase of
Homes Acquisition Corp., Mobile World, Inc., Showcase of Homes, Inc.
and the Stockholders named therein
10.7 -- Agreement and Plan of Organization dated as of September 10, 1997, by 10.7 323-35649
and among HomeUSA, Inc., Patrick Home Center Acquisition Corp., Patrick
Home Center, Inc. and the Stockholder named therein
10.8 -- Agreement and Plan of Organization dated as of September 10, 1997, by 10.8 323-35649
and among HomeUSA, Inc., Home Folks Housing Center Acquisition Corp.,
Home Folks Housing Center, Inc. and the Stockholder named therein
10.9 -- Agreement and Plan of Organization dated as of September 10, 1997, by 10.9 323-35649
and among HomeUSA, Inc., Cooper's Mobile Homes Acquisition Corp., Pac
West Management Acquisition Corp., HUSAI Acquisition Corp., Cooper's
Mobile Homes, Inc., Pac West Mgmt., Inc., HomeUSA, Inc., and the
Stockholders named therein
10.10 -- Agreement and Plan of Organization dated as of September 10, 1997, by 10.10 323-35649
and among HomeUSA, Inc., CSF&T Acquisition Corp., AAA Homes Acquisition
Corp., Fordham Insurance Agency Acquisition Corp., CSF&T, Inc., AAA
Homes, L.L.C., Fordham Insurance Agency, Inc. and the Stockholders
named therein
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
INCORPORATED BY
REFERENCE TO THE
EXHIBIT INDICATED
BELOW AND TO THE
FILING WITH THE
COMMISSION INDICATED
BELOW
---------------------
EXHIBIT EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT NUMBER FILE NUMBER
- ------------------ ----------------------------------------------------------------------- ------ -----------
<S> <C> <C> <C>
10.11 -- Agreement and Plan of Organization dated as of September 10, 1997, by 10.11 323-35649
and among HomeUSA, Inc., WillMax Homes of Colorado L.L.C. and the
Owners named therein
10.12 -- Form of Employment Agreement between HomeUSA, Inc. and Cary N. 10.12 323-35649
Vollintine
10.13 -- Form of Employment Agreement between HomeUSA, Inc. and Michael F. Loy 10.13 323-35649
10.14 -- Form of Employment Agreement between HomeUSA, Inc. and Frank W. 10.14 323-35649
Montfort
10.15 -- Form of Employment Agreement between HomeUSA, Inc. and Philip deMena 10.15 323-35649
10.16 -- Form of Employment Agreement between HomeUSA, Inc. and Philip Campbell 10.16 323-35649
10.17 -- Form of Employment Agreement between HomeUSA, Inc. and Don A. Palmour 10.17 323-35649
10.18 -- Form of Employment Agreement between HomeUSA and Donald D. Moseley 10.18 323-35649
10.19 -- Form of Founders' Employment Agreement 10.19 323-35649
10.20 -- Form of Agreement Among Certain Stockholders 10.20 323-35649
10.21 -- Form of Indemnity Agreement with Notre Capital Ventures II, L.L.C. 10.21 323-35649
21.1 -- List of subsidiaries of HomeUSA, Inc. 21.1 323-35649
*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
27 -- Financial Data Schedule 27 323-35649
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* Filed herewith
+ Previously filed
(b) Financial Statement Schedules
The following financial statement schedules are included herein.
Schedule I
All other schedules for which provision is made in the applicable
accounting regulation of the SEC are not required under the related
instructions, are inapplicable, or the information is included in the
consolidated financial statements, and therefore have been omitted.
ITEM 17. UNDERTAKINGS.
(a) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the provisions described in Item 14, or otherwise,
the Company has been advised that in the opinion of the SEC 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 payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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
Company 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
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<PAGE>
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(b) 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, represents 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 and 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 in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 the time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) To supply by means of post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the registration statement when
it becomes effective.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, HOMEUSA, INC.
HAS DULY CAUSED THIS REGISTRATION STATEMENT OR AMENDMENT THERETO TO BE SIGNED ON
ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF
HOUSTON, STATE OF TEXAS, ON JANUARY 7, 1998.
HOMEUSA, INC.
By: /s/ CARY N. VOLLINTINE
CARY N. VOLLINTINE
CHIEF EXECUTIVE OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT OR AMENDMENT THERETO HAS BEEN SIGNED BELOW BY THE
FOLLOWING PERSONS IN THE INDICATED CAPACITIES ON JANUARY 7, 1998.
SIGNATURE TITLE
- --------------------- --------------------------------------------------
/s/CARY N. VOLLINTINE Chairman of the Board; Chief Executive Officer and
CARY N. VOLLINTINE President
/s/MICHAEL F. LOY Senior Vice President; Chief Financial Officer
MICHAEL F. LOY and Director (Chief Accounting Officer)
* Director
STEVEN S. HARTER
* Director
LARRY T. SHAFFER
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* Director
GARY W. FORDHAM
* Director
DAVID E. THOMPSON
* Director
FRANK C. MCDONALD
* Director
HAROLD K. PATRICK
* Director
STANLEY POISSO
* Director
RANDLE C. COOPER
* Director
THOMAS N. AMONETT
* Director
JAMES J. BLOSSER
* Director
STEPHEN F. SMITH
* Attorney-in-Fact /s/ CARY N. VOLLINTINE
CARY N. VOLLINTINE
CHIEF EXECUTIVE OFFICER
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports and all references to our Firm included in this registration statement
on Form S-1 filed by HomeUSA, Inc.
ARTHUR ANDERSEN LLP
Houston, Texas
January 5, 1998
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-1 to
be filed on or about December 22, 1997, of our report dated October 24, 1997 on
our audits of the financial statements of McDonald Mobile Homes, Inc. We also
consent to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND, L.L.P.
Tulsa, Oklahoma
January 5, 1998
