Registration No. 33-________
_____________________________________________________________________________
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 Identification
incorporation or 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)
1999 HOVNANIAN ENTERPRISES, INC.
STOCK INCENTIVE PLAN
(Full title of the Plan)
Peter S. Reinhart
Senior Vice President and General Counsel
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
Title of Securities Amount to be Proposed Proposed Amount of
to be Registered Registered Maximum Maximum Registration
Offering Aggregate
Price Per Offering
Share (1) Price (1)
_______________________________________________________________________________
Class A Common Stock, 1,500,000 $5.625 $8,437,500 $2,227.50
$0.01 par value per
share . . . . . .
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(h)(1) 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
December 14, 1999.
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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 Annual Report on Form 10-K for the year ended
October 31, 1998.
2. The description of the Company's capital stock contained in the
Company's Registration Statement on Form 8-A dated August 23, 1983
incorporating by reference the "Description of Securities" in the
Company's Registration Statement on Form S-1 Registration No. 2-
85198 with respect to the registration of the Class A Common Stock.
3. The Company's Quarterly Reports on Form 10-Q for the quarters ended
January 31, 1999, April 30, 1999 and July 31, 1999.
4. The Company's Current Report on Form 8-K dated September 22, 1999.
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
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 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 Hovnanian'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.
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 7. Exemption from Registration Claimed.
None.
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Item 8. Exhibits.
4.1 - Restated Certificate of Incorporation of Hovnanian
4.2 - By-laws of Hovnanian
5 - Opinion of Simpson Thacher & Bartlett with respect to legality
of securities being registered hereunder
23(a) - Consent of Ernst & Young LLP
23(b) - Consent of Simpson Thacher & Bartlett (Reference is made to
Exhibit 5(b) 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
(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
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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 17th day of December, 1999.
HOVNANIAN ENTERPRISES
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 amendment has been signed below by the following persons
in the capacities indicated on the 17th day of December, 1999.
Signature Title Date
_________ _____ ____
/s/ Kervork S. Hovnanian
____________________________
Kervork S. Hovnanian Chairman of the Board December 17, 1999
/s/ Ara K. Hovnanian Chief Executive
____________________________ Officer, President and
Ara K. Hovnanian Director December 17, 1999
/s/ Paul W. Buchanan Senior Vice President
____________________________ Corporate Controller
Paul W. Buchanan and Director December 17, 1999
/s/ William L. Carpitella Senior Vice President
____________________________ Organizational
William L. Carpitella Development December 17, 1999
/s/ Peter S. Reinhart Senior Vice President,
____________________________ General Counsel and
Peter S. Reinhart Director December 17, 1999
/s/ J. Larry Sorsby Senior Vice President,
____________________________ Treasurer,
J. Larry Sorsby Chief Financial Officer
and Director December 17, 1999
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Exhibit 5
(SIMPSON THACHER & BARTLETT LETTERHEAD APPEARS HERE)
December 15, 1999
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") which the Company intends to file
with the Securities Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), relating to 1,500,000 shares
of the Class A Common Stock, par value $.01 per share, of the Company (the
"Shares"), in connection with the 1999 Hovnanian Enterprises Inc. Stock
Incentive Plan (the "Plan").
We have examined a copy of the Plan, the Registration Statement
(including the exhibits thereto) and the related Prospectus (the
"Prospectus"). In addition, we have examined, and have relied as to matters
of fact upon, 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 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 such latter documents.
We are of the opinion that when appropriate action has been taken
by the Compensation Committee of the Board of Directors of the Company and
when such Shares have been awarded to participants in the Plan
("Participants"), or issued upon exercise of options granted to Participants,
in each case in accordance with the provisions of the Plan, any Shares to be
so awarded or issued to such Participants will be validly issued, fully paid
and nonassessable.
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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.
We hereby consent to the filing of this opinion letter as an Exhibit
to the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
Simpson Thacher & Bartlett
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Exhibit 23(a)
(ERNST & YOUNG, LLP LETTERHEAD APPEARS HERE)
We consent to the incorporation by reference into the Registration Statement
(Form S-8) of Hovnanian Enterprises, Inc. (the "Company") pertaining to the
1999 Stock Incentive Plan for the registration of 1,500,000 shares of Class A
common stock of our report dated December 15, 1998, with respect to the
consolidated financial statements and schedules of the Company included in its
Annual Report (Form 10-K) for each of the three years in the period ended
October 31, 1998, filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
New York, New York
December 16, 1999
Exhibit 24
HOVNANIAN ENTERPRISES, INC.
STOCK INCENTIVE PLAN
POWER OF ATTORNEY
The undersigned directors of Hovnanian Enterprises, Inc., a
Delaware corporation, hereby appoint Peter S. Reinhart and J. Larry Sorsby
their true and lawful attorney, and each of them their true and lawful
attorney, with power to act without the other and with full power of
substitution and resubstitution, to execute for the undersigned directors and
in their names to file with the Securities and Exchange Commission,
Washington, D.C., under provisions of the Securities Act of 1933, as amended,
one or more post-effective amendments to the Registration Statement on Form S-8,
whether said amendments add to, delete from or otherwise alter such
Registration Statement, or add or withdraw any exhibits or schedules to be
filed therewith and any and all instruments in connection therewith. The
undersigned hereby grant to said attorneys and each of them full power and
authority to do and perform in the name of and on behalf of the undersigned,
and in any and all capabilities, any act and thing whatsoever required or
necessary to be done in and about the premises, as fully and to all intents
and purposes as the undersigned might do, hereby ratifying and approving the
acts of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands
and seals this 17th day of December, 1999.
/s/ Kervork S. Hovnanian
____________________________________
Kervork S. Hovnanian
/s/ Ara K. Hovnanian
____________________________________
Ara K. Hovnanian
/s/ Paul W. Buchanan
____________________________________
Paul W. Buchanan
/s/ William L. Carpitella
____________________________________
William L. Carpitella
/s/ Peter S. Reinhart
____________________________________
Peter S. Reinhart
/s/ J/ Larry Sorsby
____________________________________
J. Larry Sorsby
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