As filed with the Securities and Exchange Commission on May 23, 1996.
File No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WEITZER HOMEBUILDERS INCORPORATED
(Exact name of issuer as specified in its charter)
Florida 65-0502494
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
5901 N.W. 151st Street
Suite 120
Miami Lakes, Florida 33014
(Address of principal executive offices) (Zip Code)
MANAGEMENT AND ACQUISITION CONSULTING AGREEMENT
WITH F.B.W. HOLDINGS, INC.
MANAGEMENT AND ACQUISITION CONSULTING AGREEMENT WITH
SHULMAN & ASSOCIATES, INC.
(Full title of the plan)
Harry Weitzer, President
5901 N.W. 151st Street, Suite 120
Miami Lakes, Florida 33014
Telephone No.: (954) 819-4663
(Name and address of agent for service)
Copy to:
Joel D. Mayersohn, Esq.
Atlas, Pearlman, Trop & Borkson, P.A.
200 East Las Olas Boulevard, Suite 1900
Fort Lauderdale, FL 33301
(954) 763-1200
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CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of securities Amount to be price per offering registration
to be registered registered(1) share(1) price(1) fee (1)
================================================================================
Common Stock 350,000
($.01 par value) shares $1.50 $525,000 $182.00
================================================================================
(1) Pursuant to Rule 457(h), the maximum offering price was calculated
based upon the exercise price of the Options described herein.
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WEITZER HOMEBUILDERS INCORPORATED
CROSS REFERENCE SHEET REQUIRED BY ITEM 501(B) OF REGULATION S-K
Form S-8 Item Number
AND CAPTION CAPTION IN PROSPECTUS
-------------------- ---------------------
1. Forepart of Registration State- Facing Page of Registration
ment and Outside Front Cover Statement and Cover Page
Page of Prospectus of Prospectus
2. Inside Front and Outside Back Inside Cover Page of Pro-
Cover Pages of Prospectus spectus and Outside
Cover Page of Prospectus
3. Summary Information, Risk Fac- Not Applicable
tors and Ratio of Earnings to
Fixed Charges
4. Use of Proceeds Not Applicable
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Sales by Selling
Security Holders
8. Plan of Distribution Cover Page of Prospectus
and Sales by Selling
Security Holders
9. Description of Securities to be Description of Securities;
Registered Consulting Agreements
10. Interests of Named Experts and Legal Matters
Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Infor- Incorporation of Certain
mation by Reference Documents by Reference
13. Disclosure of Commission Posi- Indemnification of Direc-
tion on Indemnification for tors and Officers; Under-
Securities Act Liabilities takings
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PROSPECTUS
WEITZER HOMEBUILDERS INCORPORATED
350,000 SHARES OF CLASS A COMMON STOCK
($.01 PAR VALUE)
Issued Pursuant to the Exercise of Options under
the Company's Consulting Agreements
with F.B.W. Holdings, Inc.
and Shulman & Associates, Inc.
This Prospectus is part of a Registration Statement which registers an
aggregate of 350,000 shares of Class A Common Stock, $.01 par value (such shares
being referred to as the "Shares"), of Weitzer Homebuilders Incorporated (the
"Company" or "Weitzer") which may be issued upon exercise of certain options, as
set forth herein, to (i) F.B.W. Holdings, Inc., a consultant to the Company
("F.B.W.") pursuant to a written Management Consulting Agreement dated May 14,
1996 (the "F.B.W. Consulting Agreement"), providing for the issuance of options
to purchase 175,000 of such Shares and (ii) Shulman & Associates, Inc., a
consultant to the Company ("Shulman") pursuant to a written Management
Consulting Agreement dated May 14, 1996 (the "Shulman Consulting Agreement")
providing for the issuance of options to purchase an additional 175,000 of such
Shares (all of such options being hereinafter collectively referred to as the
"Options"). F.B.W. and Shulman may be sometimes collectively referred to as the
"Consultants," and the F.B.W. Consulting Agreement and the Shulman Consulting
Agreement may be collectively referred to as the "Consulting Agreements." In
addition, the Consultants, in their capacity as selling shareholders, may
sometimes hereafter be collectively referred to as the "Selling Security
Holders." All of the Options are being issued to the Consultants pursuant to
written consulting agreements. The Company has been advised by the Selling
Security Holders that they may sell all or a portion of the Shares from time to
time in the over-the-counter market, in negotiated transactions, directly or
through brokers or otherwise, and that such Shares will be sold at market prices
prevailing at the time of such sales or at negotiated prices, and the Company
will not receive any proceeds from such sales.
No person has been authorized by the Company to give any information or
to make any representation other than as contained in this Prospectus, and if
given or made, such information or representation must not be relied upon as
having been authorized by the Company. Neither the delivery of this Prospectus
nor any distribution of the Shares issuable under the terms of the Consulting
Agreements shall, under any circumstances, create any implication that there has
been no change in the affairs of the Company since the date hereof.
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED ON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
--------------
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL SECURITIES
IN ANY STATE TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
IN SUCH STATE.
The date of this Prospectus is May 23, 1996.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed with the Commission can be inspected and
copied at the public reference facilities of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549. Copies of this material can also be obtained at
prescribed rates from the Public Reference Section of the Commission at its
principal office at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Company's Common Stock is traded on the NASDAQ National Market System under the
symbol "WTZRA."
The Company has filed with the Commission a Registration Statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Act"), with respect to the resale of up to an aggregate of up to
350,000 shares of the Company's Class A Common Stock, to be issued to
Consultants of the Company upon exercise of certain options pursuant to written
Consulting Agreements of Weitzer. This Prospectus, which is Part I of the
Registration Statement, omits certain information contained in the Registration
Statement. For further information with respect to the Company and the shares of
the Class A Common Stock offered by this Prospectus, reference is made to the
Registration Statement, including the exhibits thereto. Statements in this
Prospectus as to any document are not necessarily complete, and where any such
document is an exhibit to the Registration Statement or is incorporated by
reference herein, each such statement is qualified in all respects by the
provisions of such exhibit or other document, to which reference is hereby made,
for a full statement of the provisions thereof. A copy of the Registration
Statement, with exhibits, may be obtained from the Commission's office in
Washington, D.C. (at the above address) upon payment of the fees prescribed by
the rules and regulations of the Commission, or examined there without charge.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated herein by reference and made a part hereof:
1. The Company's Annual Report on Form 10-K for the
fiscal year ended September 30, 1995.
2. The Company's Quarterly Reports on Form 10-Q for the
quarterly period ended December 31, 1995, and March 31, 1996.
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3. All reports and documents filed by the Company pursuant to Section
13, 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the respective
date of filing of such documents. Any statement incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus 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 statement modified or superseded
shall not be deemed, except as so modified or superseded, to constitute part of
this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of the Prospectus has been
delivered, on the written or oral request of any such person, a copy of any or
all of the documents referred to above which have been or may be incorporated by
reference in this Prospectus, other than exhibits to such documents. Written
requests for such copies should be directed to Corporate Secretary, Weitzer
Homebuilders Incorporated, 5901 N.W. 151st Street, Suite 120, Miami Lakes,
Florida 33014.
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THE COMPANY
GENERAL
Weitzer Homebuilders Incorporated (the "Company"), organized in Florida
in 1994, is engaged, through its subsidiaries, primarily in the design,
construction and sale of single-family homes and townhomes in Dade and Broward
Counties located in Southeast Florida. Prior to May 1995, the Company conducted
substantially all of its homebuilding operations through general partnerships
(the "Weitzer Homebuilding Partnerships"), in which one general partner was a
subsidiary of the Company and the other general partner was a subsidiary of an
unaffiliated third party (the "Financial Partner"). Each general partnership was
involved in the development of one specific homebuilding project. In May 1995,
with a portion of the net proceeds of the Company's initial public offering, the
Company acquired the capital stock of the then existing Financial Partner
affiliates (the "Partnership Acquisition"). Since that time, the Company
consolidates the operations of the Weitzer Homebuilding Partnerships with the
financial statements of the Company. Unless the context requires otherwise, all
references to the Company shall include its subsidiaries and the Weitzer
Homebuilding Partnerships.
The Company offers a wide variety of moderately-priced homes that are
designed to appeal to the entry level and first time move- up buyers. The
Company has delivered approximately 1,318 homes in the past five fiscal years,
including 296 in the fiscal year ended September 30, 1995. Sales prices of the
Company's homes range from approximately $75,000 to $285,000 and the average
sales price of homes delivered during the fiscal year ended September 30, 1995,
was approximately $127,000. At present, the Company has nine communities in
various stages of planning and development, including seven communities in which
the Company is currently offering homes for sale. At September 30, 1995, the
Company had 1,006 available for sale and 1,125 available lots under option and
contract, compared to 226 available lots for sale and 1,810 available lots under
option and contract at September 30, 1994. There is no assurance that all lots
available for home construction will in fact be used for construction of homes
since the acquisition of land and the construction and sales of homes are
subject to a variety of factors, including, without limitation, general and
local economic conditions, availability of financing, interest rates and
government regulation.
The Company's principal executive offices are located at
5901 N.W. 151st Street, Suite 120, Miami Lakes, Florida 33014.
OPERATING STRATEGY
The operating strategy of the Company emphasizes the following
elements:
7
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AFFORDABLE HOUSING AND VALUE PRICING. The Company offers a wide variety
of moderately-priced homes that are designed to appeal to the entry-level and
first-time move-up buyers. The Company strives to deliver superior value to home
buyers by pricing homes competitively while consistently providing innovative
designs including architectural details and amenities in several of its projects
typically found in more expensive homes such as cathedral ceilings, recessed
lighting, glass block and security intercom systems. The Company's models afford
prospective home buyers a variety of options and features so that they may
customize their designs to suit their needs.
COMMITMENT TO QUALITY AND CUSTOMER SERVICE. Based on internal surveys
conducted by the Company, the Company believes that its commitment to quality
construction and customer service has afforded it a favorable reputation among
home buyers and developers and led to repeat and referral business. The Company
acts as the general contractor for its projects and requires that its
subcontractors and suppliers use high quality, durable materials in the
construction of its homes. The Company generally provides home buyers with at
least a one-year warranty on workmanship and building materials and, in certain
instances such as when financing is provided through a government loan or where
city codes requires, a ten-year structural warranty.
COST CONTROLS. In general, the Company attempts to reduce certain risks
in the homebuilding industry and maximize its financial resources by: (i)
acquiring land for development through seller financing (which generally allows
for more favorable payment terms and lower closing costs); (ii) utilizing
options and other similar agreements whereby the Company provides a relatively
small deposit to obtain the right to purchase a specified number of lots over
some period of time so long as it exercises a certain number of options pursuant
to a periodic takedown schedule; (iii) obtaining required zoning entitlements
prior to purchase land; (iv) beginning construction of a home only after
execution of a sales contract, receipt of a down payment and, where applicable,
the buyer's receipt of mortgage approval; (v) using subcontractors on a fixed
price basis; (vi) minimizing inventory of land and unsold homes by building
speculative units on a limited basis; and (vii) obtaining volume discounts on
construction materials.
SOUTHEAST FLORIDA MARKET. Although the Company is continuously
evaluating locations for new residential communities and is exploring the
possibility of expanding into areas outside of its primary market in Southeast
Florida, management of the Company anticipates that in the near term its
business and earnings will continue to be derived principally from the Southeast
Florida market. Based on management's knowledge of the Southeast Florida
homebuilding market, the Company believes it has certain competitive advantages
in this market, including senior management's understanding of, and experience
with the local
8
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market; controls and cost savings that result from the Company's centralized
operations; and an experienced sales force that is employed on a long-term
rather than project-by-project basis.
LAND ACQUISITION AND DEVELOPMENT.
The Company acquires both improved building lots ready for
construction, and tracts of land that require site improvements prior to
construction. Generally, the Company attempts to acquire or control at least 100
lots in a development to achieve economies of scale in its marketing activities.
When contemplating the purchase of land for development, the Company considers
the cost of the land, the desirability of the proposed project to targeted home
buyers, population growth patterns, competitive conditions and available
financing. The Company's land purchase agreements are typically subject to
numerous conditions, including, but not limited to, the Company's ability to
obtain or verify the necessary zoning and other governmental approvals for the
proposed subdivision. During the investigation period, the Company also confirms
the availability of utilities, conducts hazardous waste and other environmental
analyses, arranges construction financing and completes its marketing
feasibility studies. As a result, the Company is generally able to begin
development activities immediately after closing the land purchase.
The Company attempts to reduce the financial risks and capital
requirements associated with maintaining its own inventory of lots by utilizing
options and other similar agreements pursuant to which the Company provides a
deposit and obtains the right to purchase a specified number of lots over a
period of time so long as it exercises a certain number of its options pursuant
to a periodic takedown schedule. These agreements are generally on a non-
recourse basis, so that if the Company does not meet the takedown schedule, its
only financial risk is forfeiture of a deposit. Generally, the options are
exercised only after prospective home buyers have executed a sales contract and
made a down payment; however, the options may be exercised without having
pre-sold the lots in order for the Company to preserve its option to purchase
the remaining lots.
MANAGEMENT AND ACQUISITION CONSULTING AGREEMENT WITH F.B.W. HOLDINGS, INC.
On May 14, 1996, the Company entered into a Management and Acquisition
Consulting Agreement with F.B.W., pursuant to which the Company agreed to issue
to F.B.W. Options to purchase up to an aggregate of 175,000 shares of Class A
Common Stock of the Company in consideration for consulting services to be
provided to the Company over an anticipated three-year period commencing as of
the date of the agreement. F.B.W. is wholly-owned by Mr. Franklyn Weichelsbaum,
who is the sole officer and director of F.B.W. The term of the Management and
Acquisition Consulting
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Agreement will be three years. Under the terms of the F.B.W. Consulting
Agreement, F.B.W. is to undertake for and consult with the Company concerning
management, marketing, strategic planning, corporate organization and structure,
expansion of services and shall review and advise the Company regarding its
overall progress, needs and condition.
In particular, F.B.W. shall provide the following enumerated services:
(i) the implementation of short range and long term strategic planning to fully
develop and enhance the Company's assets, resources and services; (ii) the
implementation of a marketing program to assist the Company in broadening the
markets for its business and services and promote the image of the Company and
its businesses and services; (iii) assist the Company in monitoring the services
provided by the Company's other outside professionals; and (iv) advise and
assist the Company in identifying, evaluating, structuring and acquiring
businesses, to advise and assist the Company in identifying, evaluating and
acquiring properties
MARKETING CONSULTING AGREEMENT
On May 14, 1996, the Company entered into a Management and Acquisition
Consulting Agreement with Shulman & Associates, Inc. pursuant to which the
Company agreed to issue to Shulman Options to purchase up to an aggregate of
175,000 shares of Class A Common Stock of the Company in consideration for
consulting services to be provided to the Company over an anticipated three-year
period commencing as of the date of the Agreement. Shulman is wholly- owned by
Mr. Manny Shulman, who is the sole officer and director of Shulman. The term of
the Management and Acquisition Consulting Agreement will be three years. Shulman
is to undertake for and consult with the Company concerning management,
marketing, strategic planning, corporate organization and structure, financial
matters including stockholder relations, and evaluating and structuring business
acquisitions.
In particular, Shulman shall provide the following enumerated services:
(i) the implementation of short-range and long-term planning to fully develop
and enhance the Company's assets, resources and services; (ii) the
implementation of a marketing program to assist the Company in broadening the
markets for its business and services and promote the image of the Company;
(iii) assist the Company in monitoring the services provided by the Company's
advertising firm and public relations firm; (iv) advise the Company relative to
the continued development of a stockholder relations program; (v) assist the
Company in developing programs and resources to enable and enhance its
capacities to secure regulatory approvals; (vi) advise and assist the Company in
identifying, evaluating and structuring business acquisitions.
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COMPENSATION
In connection with the Consulting Agreements, the Company has agreed to
issue Options to purchase up to 350,000 shares of Class A Common Stock of the
Company over the aforementioned period and which are not being administered by
either the Board of Directors of the Company or any committee of the Board of
Directors organized for that purpose. The specific terms of the Options are as
follows:
(a) OPTION PRICE. Options to purchase 350,000 shares of
Common Stock shall be exercisable at $1.50 per share.
The Options may be exercised in part or in whole.
(b) TERM OF OPTIONS. Each Option expires three years
following the date of issuance.
(c) PAYMENT FOR SHARES. The purchase price for the exercise of the
Options is payable in cash, and the price for the shares of
Common Stock is to be paid in full upon exercise of the
Options.
(d) TRANSFERABILITY. The Options are not transferable by
the holder thereof except to the Consultant's sole
shareholder or pursuant to the laws of descent and
distribution.
(e) REDEMPTION. There are no redemption rights afforded
to the Company in connection with the Options.
(f) ADJUSTMENTS. The number of shares of Class A Common
Stock of the Company purchasable upon exercise of the
Options and the exercise price of the Options are
subject to adjustment upon the occurrence of specified
events primarily involving stock dividends, stock
splits, reorganizations, reclassifications,
consolidations and mergers. There will be no
adjustment for the payment of cash dividends by the
Company on its Class A Common Stock. The Company is
not required to issue fractional shares. Options for
fractional shares amounting to less than one share
will be disregarded.
(g) MISCELLANEOUS. It is intended that the resale of the shares of
Class A Common Stock issued on exercise of the Options will be
fully registered under the Securities Act of 1933.
FEDERAL INCOME TAX EFFECTS
An Option holder does not recognize taxable income on the date of the
grant of the Option, which is a non-statutory option, but recognizes ordinary
income generally at the date of exercise in the
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amount of the difference between the Option exercise price and the fair market
value of the Class A Common Stock on the date of exercise. However, if the
holder is subject to the restrictions on resale of common stock under Section 16
of the Securities Exchange Act of 1934, such person generally recognizes
ordinary income at the end of the six-month period following the date of
exercise in the amount of the difference between the option exercise price and
the fair market value of the common stock at the end of the six- month period.
Nevertheless, such holder may elect within 30 days after the date of exercise to
recognize ordinary income as of the date of exercise. The amount of ordinary
income recognized by the Option holder is deductible by the Company in the year
that income is recognized.
RESTRICTIONS UNDER SECURITIES LAWS
The sale of any shares of Class A Common Stock acquired upon the
exercise of the Options must be made in compliance with federal and state
securities laws. Officers, directors and 10% or greater stockholders of the
Company, as well as certain other persons or parties who may be deemed to be
"affiliates" of the Company under the Federal Securities Laws, should be aware
that resales by affiliates can only be made pursuant to an effective
Registration Statement, Rule 144 or any other applicable exemption. Officers,
directors and 10% and greater stockholders are also subject to the "short swing"
profit rule of Section 16(b) of the Securities Exchange Act of 1934. Section
16(b) of the Exchange Act generally provides that if an officer, director or 10%
and greater stockholder sold any Class A Common Stock of the Company acquired
pursuant to the exercise of a stock option or warrant, he would generally be
required to pay to the Company any "profits" resulting from the sale of the
stock and receipt of the stock option. Section 16(b) exempts all option
exercises from being treated as purchases and, instead, treats an option grant
as a purchase of the underlying security, which grant/purchase may be matched
with any sale of the underlying security within six months of the date of grant.
SALES BY SELLING SECURITY HOLDERS
The following table sets forth the name of the Selling Security
Holders, the amount of shares of Class A Common Stock held directly or
indirectly or underlying the maximum number of Options to be issued to the
Selling Security Holders, the maximum amount of shares of Class A Common Stock
underlying the Options to be offered by the Selling Security Holders, the
exercise price for the Options, the amount of Class A Common Stock to be owned
by the Selling Security Holders following sale of such shares of Class A Common
Stock and the percentage of shares of Class A Common Stock to be owned by the
Selling Security Holders following completion of
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such offering (based on 2,032,663 shares of Class A Common Stock of the Company
outstanding at March 31, 1996).
<TABLE>
<CAPTION>
Estimated Percentage
Per Share Shares to be to be Owned
Name of Selling Number of Shares to Exercise Owned After After
Security Holder Shares Owned Be Offered Price Offering Offering
- --------------- ------------ ---------- --------- ------------ ----------
<S> <C> <C> <C> <C> <C>
F.B.W. Holdings,
Inc. 175,000* 175,000* $1.50 -0- --
Shulman &
Associates, Inc. 175,000* 175,000* $1.50 -0- --
</TABLE>
* Represents shares of Common Stock underlying Options.
DESCRIPTION OF SECURITIES
The Company is currently authorized to issue up to 40,000,000 shares of
Class A Common Stock, $.01 par value per share, of which 2,032,663 shares were
outstanding as of March 31, 1996. The Company is authorized to issue 1,500,000
shares of Class B Common Stock all of which are outstanding. The Company is
authorized to issue up to 5,000,000 shares of Preferred Stock, $.01 par value
per share, none of which were outstanding as of March 31, 1996.
CLASS A COMMON STOCK
The Company's Class A Common Stock, $.01 par value, has been traded
since April 26, 1995, on the NASDAQ National Market System under the symbol
"WTZRA." Prior to that time, there was no public market for the Class A Common
Stock. There is no established public trading market for the Company's Class B
Common Stock, $.01 par value ("Class B Common Stock"), all of the shares of
which are held by Mr. Harry Weitzer. The following sets forth the range of high
and low bid prices for the Class A Common Stock as reported on the NASDAQ
National Market System during each of the quarters presented. The quotations set
forth below are inter-dealer quotations, without retail mark-ups, mark-downs or
commissions and may not necessarily represent actual transactions.
CLASS A COMMON STOCK
QUARTERLY PERIOD ENDED HIGH BID LOW BID
March 31, 1996 $4.25 $3.125
December 31, 1995 $5.00 $3.75
September 30, 1995 $7.1250 $5.7500
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June 30, 1995 commencing $7.1250 $6.4675
April 26, 1995
As of December 18, 1995, there were 136 holders of record of the
Company's Class A Common Stock. This number does not include beneficial owners
of the Class A Common Stock whose shares are held in the names of various
dealers, clearing agencies, banks, brokers and other fiduciaries.
DIVIDENDS
Prior to the Earnings Achievement Date (as hereinafter defined), the
holders of the Common Stock are entitled to receive, if, when and as declared by
the Board of Directors to the extent funds are legally available therefor,
dividends at the rate of (i) $.325 per share per annum, with respect to the
Class A Common Stock, and (ii) $.001 per share per annum, with respect to the
Class B Common Stock, payable quarterly on the 15th day of February, May, August
and November of each year. The Company's Board of Directors declared a quarterly
cash dividend of $.08125 on the Class A Common Stock payable on August 15, 1995,
and November 15, 1995. No other cash dividends have been declared or paid. For
periods following the Earnings Achievement Date, holders of the Class A Common
Stock and the Class B Common Stock are entitled to receive such dividends, in
equal amounts per share, as may be declared from time to time by the Board of
Directors out of funds legally available therefor.
The Earnings Achievement Date is a date which is 10 business days
following the filing by the Company with the Securities and Exchange Commission
of the first Form 10-Q or Form 10-K, as the case may be (the "SEC Report"),
which reflects that, as of the last day of the period to which such SEC Report
relates, the Company has had an aggregate of $7,500,000 of Operating Income
earned since April 1, 1995 (the "Earnings Achievement"). "Operating Income" of
the Company for any fiscal period means the Consolidated Net Income for such
period, (x) increased or decreased by all income tax expense or benefit for such
period, and (y) decreased by all dividends paid or accrued during such period.
"Consolidated Net Income" of the Company for any period means the consolidated
income or loss of the Company and its subsidiaries as set forth on the Company's
consolidated statement of income for any such fiscal period and as determined in
accordance with generally accepted accounting principles consistently applied,
provided that (i) the results of operations of any person acquired in a pooling
of interests transaction for any period prior to the date of such acquisition
shall be excluded, and (ii)(a) any gains or losses from assets sales or reserves
related thereto (other than a disposition of housing inventory in the ordinary
course of business), (b) any gains or losses upon the extinguishment of
indebtedness, including the write-off of unamortized deferred loan costs and
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<PAGE>
unamortized original issue discount in connection with the retirement of the
Company's 10% Bonds due June 30, 1998 ("10% Bonds"), or any amortization
relating to original issue discount and deferred loan costs in connection with
such 10% Bonds, and (c) any extraordinary gains or losses, shall be excluded. No
later than (i) 45 days after the end of the Company's fiscal quarter which is
not the year-end or (ii) 90 days after the fiscal year-end, as the case may be,
the Chief Financial Officer of the Company shall determine if the Earnings
Achievement has occurred. On the day of the filing of the SEC Report with the
Commission, the Company shall make a public announcement that the Earnings
Achievement has occurred.
Under the terms of the Company's 10% Bonds, the Company may not declare
or pay any dividend or make any other distribution on any equity securities of
the Company (except dividends or distributions payable in equity securities of
the Company), or purchase, redeem or otherwise acquire, or permit a subsidiary
to purchase, redeem or otherwise acquire, any equity security of the Company
(other than equity securities acquired in exchange for securities of the Company
and certain equity securities issued to employees, directors or consultants),
if, upon giving effect to such dividend, distribution, redemption or other
acquisition, the net worth of the Company would be reduced to less than an
amount equal to 120% of the remaining indebtedness outstanding under the 10%
Bonds. As of September 30, 1995, the indebtedness outstanding under the
Company's 10% Bonds was approximately $3,750,000, including accrued interest
thereon, and the consolidated net worth of the Company as of September 30, 1995,
was $10,054,871.
Under the terms of the Company's loan agreement with Residential
Funding Corporation, the Company may not declare or pay any dividend or make any
other distribution on any shares of capital stock of the Company (other than for
the dividends on the Class A Common Stock and Class B Common Stock set forth in
the Company's Articles of Incorporation prior to the Earnings Achievement Date)
in an amount which exceeds 50% of the previous fiscal year's audited pre tax
profits to the extent that the same would cause an event of default under the
agreement.
VOTING RIGHTS
Holders of shares of Class A Common Stock and Class B Common Stock vote
as a single class on all matters submitted to a vote of shareholders (except as
otherwise required by law or in the Company's Articles). Each share of Class A
Common Stock and Class B Common Stock is entitled to one vote. The holders of
shares of Class A Common Stock and Class B Common Stock are not entitled to
cumulative voting rights. The terms of the Class A Common Stock may not be
amended by the affirmative vote of the holders of at least the majority of the
then-outstanding shares of the Class A Common Stock voting together as a
separate class. Under existing Florida law, the holders of the outstanding
shares of Class A Common Stock will be entitled to vote as a separate class upon
a
15
<PAGE>
proposed amendment of the articles if it would change the rights, preferences
or limitations of the Class A Common Stock, and in certain other circumstances
provided by statute. Prior to the Earnings Achievement Date having occurred and
all accumulated and unpaid dividends on the Class A Common Stock and the Class B
Common Stock having been declared and paid in full, the Company will not create
and issue any class or series of stock, including a series of preferred stock,
ranking equal or prior to the Class A Common Stock and Class B Common Stock with
respect to the payment of dividends if the distribution of assets and
liquidation, dissolution or winding up without the affirmative vote of the
holders of at least a majority of the then-outstanding shares of Class A Common
Stock voting together as a separate class taken in advance of any such actions.
Upon liquidation, dissolution or winding up of a company, company
distributions to holders of any class of common stock would only be made after
payment in full of creditors and provision for the preference of any preferred
stock having preference over the common stock. Thereafter, so long as any shares
of Class B Common Stock are outstanding, the holders of Class A Common Stock are
entitled to receive $6.50 per share and the holders of Class B Common Stock are
to entitled to receive $.01 per share. After such amounts are paid, the holders
of the Class B Common Stock are entitled to $6.50 per share and the holders of
the Class A Common Stock are entitled to receive $.01 per share. Any remaining
amount would then be shared pro ratably by both classes.
The holders of the Class A Common Stock and Class B Common Stock are
not entitled to pre-emptive rights or subscription or redemption privileges.
Class A Common Stock is not convertible.
The Class B Common Stock is convertible share for share into the Class A Common
Stock if the Earnings Achievement Date has occurred and all accumulated and
unpaid dividends in the Class A Common Stock have been declared and paid in
full. If all the shares of Class B Common Stock are so converted, the Board of
Directors shall have the right, without further shareholder action, to change
the designation of the Class A Common Stock to Common Stock.
PREFERRED STOCK
The Board of Directors is authorized, subject to the voting rights, if
any, of the Class A Common Stock, to issue the authorized and unissued preferred
stock in one or more series, to fix or alter the rights, preferences, privileges
and restrictions, including the dividend rights, dividend rate, conversion
rights, voting rights and terms of redemption, liquidation preferences and
sinking fund of any series of preferred stock which is authorized and unissued.
No shares of Preferred Stock have been issued or are outstanding as of the date
hereof.
16
<PAGE>
OVER-THE-COUNTER MARKET
The Company's Class A Common Stock is traded on the NASDAQ National
Market System under the symbol "WTZRA."
TRANSFER AGENT
The Transfer Agent for the shares of Common Stock is
Continental Stock Transfer & Trust Company, 2 Broadway, New York, New York
10004.
LEGAL MATTERS
Certain legal matters in connection with the securities being offered
hereby will be passed upon for the Company by Atlas, Pearlman, Trop & Borkson,
P.A., Special Counsel for the
Company, Fort Lauderdale, Florida.
INDEMNIFICATION
The Company has authority under Section 607.0850 of the Florida
Business Corporation Act (the "FBCA") to indemnify its directors and officers to
the extent provided for in such Statute. The Company's by-laws provide that, to
the fullest extent permitted by applicable law, as amended from time to time,
the Company will indemnify any person who was or is a party or is threatened to
be made a party to any action, suit or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that such person is or
was a director or officer of the Company or serves in such capacity with any
other enterprise at the request of the Company. The Company may also indemnify
employees or agents of the Company if the Company's Board so approves. This
indemnification includes the right to advancement of expenses when allowed
pursuant to applicable law.
The provision of the FBCA authorizes the Company to indemnify its
officers and directors in connection with actions, suits and proceedings brought
against them if the person acted in good faith and in a manner which the person
reasonably believed to be in, or not opposed to, the best interest of the
Company and, with respect to any criminal actions, had no reasonable cause to
believe the person's conduct was unlawful. Unless pursuant to a determination by
a court, the determination of whether a director, officer or employee has acted
in accordance with the applicable standard of conduct must be made by (i) a
majority vote of the directors who were not parties to the proceeding or a
committee consisting solely of two or more directors not party to the
proceedings, (ii) independent legal counsel selected by a majority vote of the
directors who were parties to the proceeding or committee of directors (or
selected by the full board if a quorum or committee
17
<PAGE>
cannot be obtained), or (iii) the affirmative vote of the majority of the
Company's shareholders were not parties to the proceeding.
The FBCA further provides that the Company may make any other further
indemnity by resolution, by-law, agreement, vote of shareholders, disinterested
directors or otherwise, except with the respect to certain enumerated acts or
omissions of such persons. Florida law prohibits indemnification or advancement
of expenses if a judgement or other final adjudication establishes that the
actions of a director, officer or employee constitute (i) a violation of
criminal law, unless the person had reasonable cause to believe his conduct was
unlawful, (ii) a transaction from which such person derived an improper personal
benefit, (iii) wilful misconduct or conscious disregard for the best interest of
the Company in the case of a derivative action by a shareholder, or (iv) in the
case of a director, a circumstance under which a director would be liable for
improper distributions under Section 607.0384 of the FBA. The FBCA does not
affect a director's responsibilities under any other law, such as federal
securities laws.
The Company maintains directors and officers liability insurance, which
covers the Company's subsidiaries and the respective directors and officers.
18
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The documents listed in (a) through (b) below are incorporated by
reference in the Registration Statement. All documents subsequently filed by the
Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post- effective amendment 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 the Registration Statement and to be part
thereof from the date of filing of such documents.
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended September 30, 1995.
(b) The Company's Quarterly Reports on Form 10-Q for the
quarterly period ended December 31, 1995, and March 31, 1996.
(c) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the Registrant's
document referred to in (a) above.
(d) The description of the Common Stock of the Company which
is contained in a Registration Statement filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES
A description of the Company's securities is set forth in the
Prospectus incorporated as a part of this Registration Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company has authority under Section 607.0850 of the Florida
Business Corporation Act (the "FBA") to indemnify its directors and officers to
the extent provided for in such Statute. The Company's by-laws provide that, to
the fullest extent permitted by applicable law, as amended from time to time,
the Company will indemnify any person who was or is a party or is threatened to
be made a party to any action, suit or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that such person is or
i
<PAGE>
was a director or officer of the Company or serves in such capacity with any
other enterprise at the request of the Company. The Company may also indemnify
employees or agents of the Company if the Company's Board so approves. This
indemnification includes the right to advancement of expenses when allowed
pursuant to applicable law.
The provision of the FBCA authorizes the Company to indemnify its
officers and directors in connection with actions, suits and proceedings brought
against them if the person acted in good faith and in a manner which the person
reasonably believed to be in, or not opposed to, the best interest of the
Company and, with respect to any criminal actions, had no reasonable cause to
believe the person's conduct was unlawful. Unless pursuant to a determination by
a court, the determination of whether a director, officer or employee has acted
in accordance with the applicable standard of conduct must be made by (i) a
majority vote of the directors who were not parties to the proceeding or a
committee consisting solely of two or more directors not party to the
proceedings, (ii) independent legal counsel selected by a majority vote of the
directors who were parties to the proceeding or committee of directors (or
selected by the full board if a quorum or committee cannot be obtained), or
(iii) the affirmative vote of the majority of the Company's shareholders were
not parties to the proceeding.
The FBCA further provides that the Company may make any other further
indemnity by resolution, by-law, agreement, vote of shareholders, disinterested
directors or otherwise, except with the respect to certain enumerated acts or
omissions of such persons. Florida law prohibits indemnification or advancement
of expenses if a judgement or other final adjudication establishes that the
actions of a director, officer or employee constitute (i) a violation of
criminal law, unless the person had reasonable cause to believe his conduct was
unlawful, (ii) a transaction from which such person derived an improper personal
benefit, (iii) wilful misconduct or conscious disregard for the best interest of
the Company in the case of a derivative action by a shareholder, or (iv) in the
case of a director, a circumstance under which a director would be liable for
improper distributions under Section 607.0384 of the FBA. The FBCA does not
affect a director's responsibilities under any other law, such as federal
securities laws.
The Company maintains that directors and officers liability insurance,
which covers the Company's subsidiaries and the respective directors and
officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inasmuch as the Consultants who received the Options of the Company
were knowledgeable, sophisticated and had access to comprehensive information
relevant to the Company, such transaction was undertaken in reliance on the
ii
<PAGE>
exemption from registration provided by Section 4(2) of the Act. As a condition
precedent to such grant, the Consultants were required to express an investment
intent and consent to the imprinting of a restrictive legend on each stock
certificate to be received from the Company except upon sale of the underlying
shares of Common Stock pursuant to a registration statement.
ITEM 8. EXHIBITS
EXHIBIT DESCRIPTION
(4)(a) Management and Acquisition Consulting Agreement with
F.B.W. Holdings, Inc.
(4)(b) Marketing and Acquisition Consulting Agreement with
Shulman & Associates, Inc.
(5) Opinion of Atlas, Pearlman, Trop & Borkson, P.A.
relating to the issuance of shares of securities
pursuant to the above Consulting Agreements
(23.1) Consent of Atlas, Pearlman, Trop & Borkson, P.A.
included in the opinion filed as exhibit (5) hereto
(23.2) Consent of independent certified public accountants,
Coopers & Lybrand L.L.P.
ITEM 9. UNDERTAKINGS
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offerings or sales are
being made, a post-effective amendment to this Registration Statement 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;
(b) That, for the purposes 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; and
(c) 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.
(2) 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
iii
<PAGE>
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 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.
(3) Insofar as indemnification for liabilities arising under the 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.
iv
<PAGE>
SIGNATURES
Pursuant to 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 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 Miami Lakes and the State of Florida, on the
23rd day of May, 1996.
WEITZER HOMEBUILDERS INCORPORATED
By:/S/HARRY WEITZER
-------------------------------
Harry Weitzer
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
Chairman of the Board
and Chief Executive
Officer (Principal
/S/HARRY WEITZER Executive Officer) May 23, 1996
- ----------------------
Harry Weitzer
Controller (Principal
/S/TIMOTHY S. HART Accounting Officer) May 23, 1996
- ----------------------
Timothy S. Hart
/S/JOSEPH B. ROSE Director May 23, 1996
- ----------------------
Joseph B. Rose
/S/MICHAEL A. AMBROSIO Director May 23, 1996
- ----------------------
Michael A. Ambrosio
/S/LAWRENCE HELLRING Director May 23, 1996
- ----------------------
Lawrence Hellring
/S/BRIAN KAHAN Director May 23, 1996
- ----------------------
Brian Kahan
v
EXHIBIT (4)(a)
Management and Acquisition Consulting Agreement
with
F.B.W. Holdings, Inc.
<PAGE>
WEITZER HOMEBUILDERS INCORPORATED
5901 Northwest 151st Street, Suite 123
Miami Lakes, Florida 33014
May 14, 1996
F.B.W. Holdings, Inc.
6516 Via Rosa
Boca Raton, Florida 33433
RE MANAGEMENT AND ACQUISITION CONSULTING AGREEMENT
Gentlemen:
Formalizing our discussions this is to acknowledge and confirm the
terms of our Management and Acquisition Consulting Agreement ("Consulting
Agreement") as
follows:
1. APPOINTMENT OF F.B.W. HOLDINGS, INC. Weitzer Homebuilders
Incorporated ("Weitzer") hereby engages F.B.W. Holdings, Inc. ("F.B.W.") and
F.B.W. hereby agrees to render services to Weitzer as a management and
acquisition consultant, strategic planner and advisor.
2. DUTIES. During the term of this Agreement F.B.W. shall provide
advice to, undertake for and consult with Weitzer concerning management,
marketing, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the business of Weitzer, expansion
of services, expansion, identification, evaluation and structuring business
acquisitions and shall review and advise Weitzer regarding his overall progress,
needs and condition. F.B.W. agrees to provide on a timely basis and professional
manner the following enumerated services plus any additional services
contemplated thereby. F.B.W. agrees to provide a majority of his time and the
time of his principal employees to the affairs of Weitzer for a period of at
least three years during the term of this Agreement.
(a) The implementation of short range and long term
strategic planning to fully develop and enhance Weitzer's
assets, resources and services;
<PAGE>
F.B.W. Holdings, Inc.
May 14, 1996
Page 2
(b) The implementation of a marketing program to assist
Weitzer in broadening the markets for its business and
services and promote the image of Weitzer and its business
and services;
(c) Assist Weitzer in monitoring the services provided
by Weitzer's other outside professionals to be employed by
Weitzer;
(d) Advise and assist Weitzer in identifying, evaluating,
structuring and acquiring businesses, whether in the form of
asset purchases, stock purchases, mergers, consolidations,
joint ventures, strategic alliances or otherwise, for the
account of Weitzer and advise and assist Weitzer in
identifying, evaluating and acquiring properties.
3. TERM. The term of this Consulting Agreement shall be for
three years commencing on the date hereof.
4. COMPENSATION. As compensation for F.B.W.'s services to be
rendered in connection with the provisions set forth in Section 2(d) herein and
provided under this Consulting Agreement, F.B.W. shall be issued three-year
options (the "Options") to purchase up to 175,000 shares of Common Stock, $.01
par value (the "Shares"), of Weitzer exercisable at a price of $1.50 per share.
The Options shall not be transferable in whole or in part by F.B.W.
5. PURCHASE OF SHARES. The exercise price for the Options shall
be paid in cash, and appropriate investment restrictions shall be noted against
the Shares. F.B.W. is acquiring the Shares for his own account (as principal)
for investment and not with a view towards distribution or resale thereof.
6. REGISTRATION. Weitzer agrees to provide F.B.W. with
registration rights at Weitzer's cost and expense and include the underlying
Shares, whether or not the Options have been exercised, in a registration
statement to be filed by Weitzer with the Securities and Exchange Commission
within the proximate future.
7. EXPENSES. F.B.W. shall be entitled to reimbursement by
Weitzer of such reasonable out-of-pocket expenses as F.B.W. may incur in
performing services under this Consulting Agreement. Any significant expenses
shall be approved in advance with Weitzer.
8. CONFIDENTIALITY. F.B.W. will not disclose to any other person,
firm or corporation, nor use for his own benefit, during or after the term of
this Consulting
<PAGE>
F.B.W. Holdings, Inc.
May 14, 1996
Page 3
Agreement, any trade secrets or other information designated as confidential by
Weitzer which is acquired by F.B.W. in the course of his performing services
hereunder. (A trade secret is information not generally known to the trade which
gives Weitzer an advantage over its competitors. Trade secrets can include, by
way of example, products or services under development, production methods and
processes, sources of supply, customer lists, marketing plans and information
concerning the filing or pendency of patent applications).
9. INDEMNIFICATION. Weitzer agrees to indemnify and hold F.B.W.
harmless from and against all losses, claims, damages, liabilities, costs or
expenses (including reasonable attorneys' fees (collectively the "Liabilities")
joint and several, arising out of the performance of this Consulting Agreement,
whether or not F.B.W. is a part to such dispute. This indemnity shall not apply,
however, and F.B.W. shall indemnify and hold Weitzer, its affiliates, control
persons, officers, employees and agents harmless from and against all
liabilities, where a court of competent jurisdiction has made a final
determination that F.B.W. engaged in negligent and willful misconduct in the
performance of his services hereunder which gave rise to the losses, claim,
damage, liability, cost or expense sought to be recovered hereunder. The
provisions of this paragraph 9 shall survive the termination and expiration of
this Consulting Agreement.
10. INDEPENDENT CONTRACTOR. F.B.W. and Weitzer hereby acknowledge
that Weichselbaum is an independent contractor. F.B.W. shall not hold himself
out as, nor shall it take any action from which others might infer, that it is
a partner of, agent of or a joint venturer of Weitzer.
11. MISCELLANEOUS. This Consulting Agreement sets forth the entire
understanding of the parties relating to the subject matter hereof, and
supersedes and cancels any prior communications, understandings and agreements
between the parties. This Consulting Agreement cannot be modified or changed,
nor can any of its provisions be waived, except by written agreement signed by
all parties. This Consulting Agreement shall be governed by the laws of the
State of Florida. In the event of any dispute as to the terms of this Consulting
Agreement, the prevailing party in any litigation shall be entitled to
reasonable attorneys' fees
<PAGE>
F.B.W. Holdings, Inc.
May 14, 1996
Page 3
Please confirm that the foregoing correctly sets forth our
understanding by signing the enclosed copy of this letter where provided and
returning it to us at your earliest convenience.
Very truly yours,
WEITZER HOMEBUILDERS
INCORPORATED
By: /S/ HARRY WEITZER
-------------------------
Harry Weitzer, Chairman
ACCEPTED AND AGREED TO as
of the 14th day of May, 1996.
F.B.W. HOLDINGS, INC.
By:FRANKLYN WEICHELSBAUM
------------------------
Its: President
EXHIBIT (4)(b)
Marketing Consulting Agreement
with
Shulman & Associates, Inc.
<PAGE>
WEITZER HOMEBUILDERS INCORPORATED
5901 Northwest 151st Street, Suite 123
Miami Lakes, Florida 33014
May 14, 1996
Shulman & Associates, Inc.
7777 Glades Road, Suite 231
Boca Raton, Florida 33434
Attention: Manny J. Shulman
RE MANAGEMENT AND ACQUISITION CONSULTING AGREEMENT
Dear Mr. Shulman:
Formalizing our discussions this is to acknowledge and confirm the
terms of our Management and Acquisition Consulting Agreement ("Consulting
Agreement") as
follows:
1. APPOINTMENT OF SHULMAN & ASSOCIATES, INC. Weitzer Homebuilders
Incorporated ("Weitzer") hereby engages Shulman & Associates, Inc. ("Shulman")
and Shulman hereby agrees to render services to Weitzer as a management and
acquisition consultant, strategic planner and advisor.
2. DUTIES. During the term of this Agreement Shulman shall provide
advice to, undertake for and consult with Weitzer concerning management,
marketing, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the business of Weitzer, expansion
of services, stockholder relations, expansion, identification, evaluation and
structuring business acquisitions and shall review and advise Weitzer regarding
its overall progress, needs and condition. Shulman agrees to provide on a timely
basis and professional manner the following enumerated services plus any
additional services contemplated thereby. Shulman agrees to provide a majority
of its time and the time of its principal employees to the affairs of Weitzer
for a period of at least three years during the term of this Agreement.
(a) The implementation of short range and long term
strategic planning to fully develop and enhance Weitzer's
assets, resources and services;
(b) The implementation of a marketing program to assist
Weitzer in broadening the markets for its business and
services and promote the image of Weitzer and its business
and services;
<PAGE>
Shulman & Associates, Inc.
Attention: Manny J. Shulman
May 14, 1996
Page 2
(c) Assist Weitzer in monitoring the services provided
by Weitzer's advertising firm, public relations firm and
other professionals to be employed by Weitzer;
(d) Advise Weitzer relative to the continued development
of a stockholder relations program and to stimulate interest
in Weitzer by institutional investors and other members of the
financial community;
(e) Assist Weitzer in developing programs and resources
to enable it to enhance its capacities to secure regulatory
approvals;
(f) Advise Weitzer relative to the recruitment and
employment of key executives consistent with the expansion of
operations of Weitzer;
(g) Advise and assist Weitzer in identifying, evaluating
and structuring business acquisitions, whether in the form of
asset purchases, stock purchases, mergers, consolidations,
joint ventures, strategic alliances or otherwise, for the
account of Weitzer.
3. TERM. The term of this Consulting Agreement shall be for
three years commencing on the date hereof.
4. COMPENSATION. As compensation for its services hereunder,
Shulman shall be issued three-year options (the "Options") to purchase up to
175,000 shares of Common Stock, $.01 par value (the "Shares"), of Weitzer
exercisable at a price of $1.50 per share. The Options shall not be
transferable in whole or in part by Shulman.
5. PURCHASE OF SHARES. The exercise price for the Options shall
be paid in cash, and appropriate investment restrictions shall be noted against
the Shares. Shulman is acquiring the Shares for its own account (as principal)
for investment and not with a view towards distribution or resale thereof.
6. REGISTRATION. Weitzer agrees to provide Shulman with
registration rights at Weitzer's cost and expense and include the underlying
Shares, whether or not the Options have been exercised, in a registration
statement to be filed by Weitzer with the Securities and Exchange Commission
within the proximate future.
<PAGE>
Shulman & Associates, Inc.
Attention: Manny J. Shulman
May 14, 1996
Page 3
7. EXPENSES. Shulman shall be entitled to reimbursement by
Weitzer of such reasonable out-of-pocket expenses as Shulman may incur in
performing services under this Consulting Agreement. Any significant expenses
shall be approved in advance with Weitzer.
8. CONFIDENTIALITY. Shulman and Weitzer will not disclose to any
other person, firm or corporation, nor use for their own benefit, during or
after the term of this Consulting Agreement, any trade secrets or other
information designated as confidential by Weitzer or Shulman which is acquired
by Weitzer or Shulman during the course of this Agreement. (A trade secret is
information not generally known to the trade which gives Weitzer or Shulman, as
the case may be, an advantage over its competitors. Trade secrets can include,
by way of example, products or services under development, production methods
and processes, sources of supply, customer lists, marketing plans and
information concerning the filing or pendency of patent applications).
9. INDEMNIFICATION. Weitzer agrees to indemnify and hold Shulman
harmless from and against all losses, claims, damages, liabilities, costs or
expenses (including reasonable attorneys' fees (collectively the "Liabilities")
joint and several, arising out of the performance of this Consulting Agreement,
whether or not Shulman is a part to such dispute. This indemnity shall not
apply, however, and Shulman shall indemnify and hold Weitzer, its affiliates,
control persons, officers, employees and agents harmless from and against all
liabilities, where a court of competent jurisdiction has made a final
determination that Shulman engaged in negligent and willful misconduct in the
performance of its services hereunder which gave rise to the losses, claim,
damage, liability, cost or expense sought to be recovered hereunder. The
provisions of this paragraph 9 shall survive the termination and expiration of
this Consulting Agreement.
10. INDEPENDENT CONTRACTOR. Shulman and Weitzer hereby
acknowledge that Shulman is an independent contractor. Shulman shall not hold
itself out as, nor shall it take any action from which others might infer, that
it is a partner of, agent of or a joint venturer of Weitzer.
11. MISCELLANEOUS. This Consulting Agreement sets forth the entire
understanding of the parties relating to the subject matter hereof, and
supersedes and cancels any prior communications, understandings and agreements
between the parties. This Consulting Agreement cannot be modified or changed,
nor can any of its provisions be waived, except by written agreement signed by
all parties. This Consulting Agreement shall be governed by the laws of the
State of Florida. In the event of any
<PAGE>
Shulman & Associates, Inc.
Attention: Manny J. Shulman
May 14, 1996
Page 4
dispute as to the terms of this Consulting Agreement, the prevailing party in
any litigation shall be entitled to reasonable attorneys' fees
Please confirm that the foregoing correctly sets forth our
understanding by signing the enclosed copy of this letter where provided and
returning it to us at your earliest convenience.
Very truly yours,
WEITZER HOMEBUILDERS
INCORPORATED
By:/S/ HARRY WEITZER
--------------------------
Harry Weitzer, Chairman
ACCEPTED AND AGREED TO as
of the 14th day of May 1996.
SHULMAN & ASSOCIATES, INC.
By: /S/ MANNY J. SCHULMAN
-----------------------------
Manny J. Shulman, President
EXHIBIT (5)
Opinion of Atlas, Pearlman, Trop & Borkson, P.A. relating to the
relating to the issuance of shares of securities
pursuant to the above Consulting Agreements
<PAGE>
ATLAS PEARLMAN TROP
[LETTERHEAD]
Direct Line: (954) 766-7816
May 23, 1996
Weitzer Homebuilders Incorporated
5901 N.W. 151st Street
Miami Lakes, FL 33014
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
This opinion is submitted pursuant to the applicable rules of the
Securities and Exchange Commission with respect to the registration by Weitzer
Homebuilders Incorporated (the "Company") of 350,000 shares of Class A Common
Stock, par value $.01 per share (the "Common Stock") issued pursuant to certain
Consulting Agreements (the "Agreements").
In our capacity as counsel to the Company, we have examined the
original, certified, conformed, photostat or other copies of the Agreements, the
Company's Certificate of Incorporation, By-Laws and corporate minutes provided
to us by the Company. In all such examinations, we have assumed the genuineness
of all signatures on original documents, and the conformity to originals or
certified documents of all copies submitted to us as conformed, photostat or
other copies. In passing upon certain corporate records and documents of the
Company, we have necessarily assumed the correctness and completeness of the
statements made or included therein by the Company and we express no opinion
thereon.
Based upon and in reliance of the foregoing, we are of the opinion that
the Common Stock, when issued in accordance with the terms of the Agreements
will be validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion in the Registration
Statement on Form S-8 to be filed with the Commission.
Very truly yours,
ATLAS, PEARLMAN, TROP & BORKSON, P.A.
JDM/bb
cc: Mr. Tim Hart
EXHIBIT (23.2)
Consent of independent certified public accountants
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference, in the Registration
Statement of Weitzer Homebuilders, Incorporated and Subsidiaries
on Form S-8, of our report dated November 22, 1995, on our audits
of the consolidated financial statements of Weitzer Homebuilders,
Incorporated and Subsidiaries as of September 30, 1994, and
for the years ended September 30, 1995, 1994, and 1993, which
report is included in the Annual report on Form 10-K of Weitzer
Homebuilders Incorporated and Subsidiaries for the year ended
September 30, 1995.
/s/ Coopers & Lybrand L.L.P.
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Coopers & Lybrand L.L.P.
Miami, Florida
May 17, 1996
