<PAGE>
As filed with the Securities and Exchange Commission on December 15, 1999
Registration No. 333-________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
WEITZER HOMEBUILDERS INCORPORATED
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Florida 65-0502494
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
7270 NW 12th Street Suite 410, Miami, Florida 33166
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
1999 Stock Plan
- --------------------------------------------------------------------------------
(Full title of the plan)
Sergio Pino, President
Weitzer Homebuilders Incorporated, 7270 NW 12th Street, Suite 410, Miami,
- --------------------------------------------------------------------------------
Florida 33166
- --------------------------------------------------------------------------------
(Name and address of agent for service)
(305) 599-8100
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
Proposed
maximum Proposed maximum
Title of securities Amount to be offering aggregate Amount of
to be registered registered (1) price per offering price registration
share (2) fee (2)
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common 10,000 shares $1.4375 $14,375 $100.00
Stock ($.01 par
value)
</TABLE>
(1) Pursuant to Rule 416(c), promulgated under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
securities to be offered or sold as a result of any adjustments from stock
splits, stock dividends or similar events.
(2) Pursuant to Rule 457(c) promulgated under the Securities Act of 1933, as
amended, the offering price is deemed to be equal to, and the amount of the
registration fee is based upon, the average of the bid and asked price per
share as of October 27, 1999.
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in Weitzer Homebuilders Incorporated's
1999 Stock Plan, as specified by Rule 428 (b) (1), promulgated by the Securities
and Exchange Commission (the "Commission"), under the Securities Act of 1933, as
amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
3
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
(Not Required in Prospectus)
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Registrant with the Commission are
incorporated herein by reference.
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1998.
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since September 30, 1998, including but not
limited to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1999, and the Registrant's Current Report
on Form 8-K, detailing Registrant's transaction with Century
Partners Group, Ltd., dated August 2, 1999.
(c) The description of the Registrant's Common Stock contained in
Registration Statements filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such
description.
In addition, all documents filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the
date of this Registration Statement and prior to the termination of the offering
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of the filing of such document with the
Commission. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of the
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 superseded such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of the Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
4
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VIII of Registrant's By-laws provides for indemnification of
officers, directors, agents and employees of Registrant as follows:
Section 1. Right to Indemnification. Each person (including here and
------------------------
hereinafter, the heirs, executors, administrators or estate of such person)
(1) who is or was a director or officer of the Corporation or who is or was
serving at the request of the Corporation in the position of a director,
officer, trustee, partner, agent or employee of another corporation,
partnership, joint venture, trust or other enterprise, or (2) who is or was
an agent or employee (other than an officer) of the Corporation and as to
whom the Corporation has agreed to grant such indemnity, shall be
indemnified by the Corporation as of right to the fullest extent permitted
or authorized by current or future legislation or by current or future
judicial or administrative decision (but, in the case of any future
legislation or decision, only to the extent that it permits the Corporation
to provide broader indemnification rights than permitted prior to the
legislation or decision), against all fines, liabilities, settlements,
costs and expenses, including attorneys' fees, asserted against him or
incurred by him in his capacity as such director, officer, trustee,
partner, agent or employee, or arising out of his status as such director,
officer, trustee, partner, agent or employee. The foregoing right of
indemnification shall not be exclusive of other rights to which those
seeking indemnification may be entitled. The Corporation may maintain
insurance, at its expense, to protect itself and any such person against
any such fine, liability, cost or expense, including attorneys' fees,
whether or not the Corporation would have the legal power to directly
indemnify him against such liability.
Section 2. Advances. Costs, charges and expenses (including
--------
attorneys' fees) incurred by a person referred to in Section 1 of this
Article VIII in defending a civil or criminal suit, action or proceeding
may be paid (and, in the case of directors and officers of the Corporation,
shall be paid) by the Corporation in advance of the final disposition
thereof upon receipt of an undertaking to repay all amounts advanced if it
is ultimately determined that the person is not entitled to be indemnified
by the Corporation as authorized by this Article VIII, and upon
satisfaction of other conditions established from time to time by the Board
of Directors or which may be required by current or future legislation
(but, with respect to the future legislation, only to the extent that it
provides conditions less burdensome than those previously provided).
Section 3. Savings Clause. If this Article VIII or any portion of it
--------------
is invalidated on any ground by a court of competent jurisdiction, the
Corporation shall nevertheless indemnify each director and officer of the
Corporation to the fullest extent permitted by all portions of this Article
VIII that has not been invalidated and to the fullest extent permitted by
law.
In addition, the Florida Business Corporation Act limits the liability of
Directors of corporations, except in certain prescribed instances, including
where a Director derived an improper personal benefit, either directly or
indirectly.
5
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act"), may be permitted to Directors,
Officers and controlling persons of the Registrant pursuant to the provisions
described above, 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 Securities Act and is, therefore,
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed as part of this Registration Statement are as
follows:
EXHIBIT DESCRIPTION
NUMBER -----------
-------
5.1 Opinion of Akerman, Senterfitt & Eidson, P.A., as to
the legality of the securities being offered
hereunder.
10.1 Weitzer Homebuilders Incorporated 1999 Stock Plan.
23.1 The consent of Akerman, Senterfitt & Eidson, P.A., is
included in the opinion filed as Exhibit 5.1 to the
Registration Statement.
23.2 Consent of McKean, Paul, Chrycy, Fletcher & Co.,
independent certified public accountants.
23.3 Consent of PricewaterhouseCoopers LLP, independent
accountants.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant 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.
(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; and
6
<PAGE>
(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 (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed or furnished to the Commission
by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities 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 the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission 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 the payment by the Registrant of expenses
incurred 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 of whether such indemnification by it is against
public policy and as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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, State of Florida, on the 14th day of December,
1999.
WEITZER HOMEBUILDERS INCORPORATED
By: /s/ Sergio Pino
---------------------------------------------
Sergio Pino
Chairman of the Board, President and Chief
Executive Officer (Principal Executive
Officer)
Pursuant to the requirements of the Securities Exchange Act of 1933, this report
has been signed by the following persons on behalf of the registrant and in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Sergio Pino Chairman of the Board, December 14, 1999
- ------------------------------- President and Chief
Sergio Pino Executive Officer
/s/ Emiliano de la Fuente Vice President of Finance December 14, 1999
- ------------------------------- (Principal Financial Officer)
Emiliano de la Fuente
/s/ Harry Weitzer December 14, 1999
- -------------------------------
Harry Weitzer Director
/s/ Larry Hellring December 14, 1999
- -------------------------------
Larry Hellring Director
/s/ Michael Ambrosio December 14, 1999
- -------------------------------
Michael Ambrosio Director
/s/ Armando Guerra December 14, 1999
- -------------------------------
Armando Guerra Director
/s/ Jose Cancela December 14, 1999
- -------------------------------
Jose Cancela Director
</TABLE>
8
<PAGE>
EXHIBIT 5.1
LEGAL OPINION
<PAGE>
AKERMAN, SENTERFITT & EIDSON, P.A.
One Southeast Third Avenue
Suite 2800
Miami, Florida 33131
(305) 374-5600
December 13, 1999
Weitzer Homebuilders Incorporated
14505 Commerce Way
Suite 400
Miami Lakes, Florida 33015
Re: Registration Statement on Form S-8
-----------------------------------
Gentlemen:
We are counsel to Weitzer Homebuilders Incorporated, a Florida corporation
(the "Company"), and our opinion has been requested with respect to the
inclusion of an aggregate 10,000 of the Company's Class A Common Stock (the
"Shares"), in a Registration Statement on Form S-8, of which all of such Shares
are issuable pursuant to awards made under the Company's 1999 Stock Plan.
This opinion has been prepared and is to be construed in accordance with
the Report on Standards for Florida Opinions dated April 8, 1991, issued by the
Business Law Section of The Florida Bar, 46 The Business Lawyer, No. 4 (the
-------------------
"Report"). The Report is incorporated by reference into this opinion.
Based upon the foregoing, it is our opinion that the Shares issuable
pursuant to awards made under the 1999 Stock Plan have been duly authorized and
when issued in accordance with awards made pursuant to and in accordance with
the 1999 Stock Plan, will be validly issued, fully paid and non-assessable.
In rendering this opinion, we advise you that members of this Firm are
members of the Bar of the State of Florida, and we express no opinion herein
concerning the applicability or effect of any laws of any other jurisdiction,
except the securities laws of the United States of America referred to herein.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement on Form S-8 relating to the Shares, as filed under the
Securities Act of 1933, as amended, with the Securities and Exchange Commission.
Very truly yours,
AKERMAN, SENTERFITT & EIDSON, P.A.
/s/ AKERMAN, SENTERFITT & EIDSON, P.A.
<PAGE>
EXHIBIT 10.1
WEITZER HOMEBUILDERS INCORPORATED
1999 STOCK PLAN
<PAGE>
WEITZER HOMEBUILDERS INCORPORATED
1999 STOCK PLAN
1. Purpose. The purpose of the Weitzer Homebuilders Incorporated 1999
Stock Plan (the "Plan") is to further the interests of Weitzer Homebuilders
Incorporated (the "Company"), its subsidiaries and its shareholders by providing
incentives in the form of grants of stock bonuses to persons who contribute to
the success and profitability of the Company. The grants will recognize and
reward outstanding individual performances and contributions and will give such
persons a proprietary interest in the Company, thus enhancing their personal
interest in the Company's continued success and progress. This program will also
assist the Company, its affiliates, and its subsidiaries in attracting and
retaining key persons.
2. Definitions. The following definitions shall apply to this Plan:
(a) "Board" means the Board of Directors of the Company.
(b) "Common Stock" means the Class A Common Stock, par value $.001 per
share of the Company.
(c) "Company" means Weitzer Homebuilders Incorporated
(d) "Plan" means this Weitzer Homebuilders Incorporated 1999 Stock
Plan.
(e) "Share" means a share of the Common Stock.
3. Administration. This Plan will be administered by either the Board of
Directors of the Company or a Committee appointed by the Board to administer the
Plan. The Board of Directors of the Company and/or the Committee, if one is
appointed, shall have the exclusive power to select the recipients of awards
pursuant to this Plan, to establish the terms of the awards granted to each
recipient, and to make all other determinations necessary or advisable under the
Plan. The Board and/or the Committee shall have the sole and absolute discretion
to determine whether the performance of a person warrants an award under this
Plan, and to determine the size and type of the award. The Board and/or
Committee shall have the full and exclusive power to construe and interpret the
Plan, to prescribe, amend, and rescind rules and regulations relating to this
Plan, and to take all actions necessary or advisable for the Plan's
administration. The Board and/or the Committee, in the exercise of its powers,
may correct any defect or supply any omission, or reconcile any inconsistency in
the Plan, or in any agreement, in the manner and to the extent it shall deem
necessary or expedient to make the Plan fully effective. In exercising this
power, the Board and/or the Committee may retain counsel at the expense of the
Company. Any determinations made by the Board and/or the Committee will be final
and binding on all persons. A member of the Board and/or the Committee will not
be liable for performing any act or making any determination in good faith.
<PAGE>
4. Shares Subject to Plan. Subject to the provisions of the Plan, the
maximum aggregate number of Shares that may be subject to awards under the Plan
shall be 10,000. If an award should expire or become unexercisable for any
reason, the Shares that were subject to such award shall, unless the Plan has
then terminated, be available for other awards under the Plan.
5. Eligibility. Any person that the Committee in its sole discretion
designates is eligible to receive an award under this Plan. The Board's and/or
the Committee's grant of an award to a recipient in any year does not require
the Board and/or the Committee to grant an award to any such recipient in any
other year. Furthermore, the Board and/or the Committee may grant different
awards to different recipients and has full discretion to choose whether to
grant awards to any person. Recipients may include employees, agents,
independent contractors, consultants, directors and/or officers of the Company
and/or its affiliates, including employees, agents, independent contractors,
consultants, officers and/or directors of Century Partners Group, Ltd. and/or
its affiliates, provided that any such awards to such persons are deemed in the
best interest of the Company and its shareholders and/or its affiliates.
6. Stock Bonus Awards. Subject to the provisions of the Plan, the Board
and/or Committee, at any time and from time to time, may grant Shares to
Employees in such amounts as the Board and/or Committee shall determine in its
sole and absolute discretion. The Board and/or the Committee shall impose such
restrictions on any Shares granted pursuant to this Plan as it may deem
advisable including, without limitation, vesting restrictions, restrictions
based upon the achievement of specific performance goals, and/or restrictions
under applicable federal or state securities laws, and may legend the
certificate representing Shares to give appropriate notice of such restrictions.
7. Taxes; Compliance with Law; Approval of Regulatory Bodies; Legends. The
Board and/or the Committee may make such provisions and take such steps as it
may deem necessary or appropriate for the withholding of any taxes that the
Company is required by any law or regulation of any governmental authority,
whether federal, state or local, domestic or foreign, to withhold in connection
with any award, including, but not limited to, (i) the withholding of delivery
of shares of Common Stock until the holder reimburses the Company for the amount
the Company is required to withhold with respect to such taxes, (ii) the
cancelling of any number of shares of Common Stock in an amount sufficient to
reimburse the Company for the amount it is required to so withhold, or (iii)
withholding the amount due from any such person's wages or compensation due such
person.
Awards can be granted, and Shares can be delivered under this Plan, only in
compliance with all applicable federal and state laws and regulations and the
rules of all stock exchanges on which the Company's Shares are listed at any
time. Shares awarded under this Plan may or may not be registered with the
Securities and Exchange Commission under the Securities Act of 1933, as
<PAGE>
amended. Any certificate issued to evidence Shares issued under the Plan may
bear appropriate legends and statements, and shall be subject to such transfer
restrictions, as the Board and/or Committee deems advisable to assure compliance
with federal and state laws and regulations and with the requirements of this
Section.
With respect to persons subject to Section 16 of the Securities Exchange
Act of 1934 ("1934 Act"), transactions under this Plan are intended to comply
with all applicable conditions of Rule 16b-3 under the 1934 Act, as such Rule
may be amended from time to time, or its successor under the 1934 Act. To the
extent any provision of the Plan or action by the Plan administrators fails to
so comply, it shall be deemed null and void, to the extent permitted by law and
deemed advisable by the Plan administrators.
8. Adjustment Upon Change of Shares. If a reorganization, merger,
consolidation, reclassification, recapitalization, combination or exchange of
shares, stock split, stock dividend, or other expansion or contraction of the
Common Stock of the Company occurs, the number and class of Shares for which
awards are authorized to be granted under this Plan shall be equitably adjusted
by the Board and/or the Committee to reflect such changes.
9. Liability of the Company. The Company and/or its affiliates shall not
be liable to any person for any tax consequences incurred by a recipient or
other person with respect to an award.
10. Amendment and Termination of Plan. The Board may alter, amend, or
terminate this Plan from time to time without approval of the shareholders of
the Company. The Board may, however, condition any amendment on the approval of
the shareholders of the Company if such approval is necessary or advisable with
respect to tax, securities or other applicable laws to which the Company, the
Plan and/or recipients of an award under the Plan are or may be subject.
11. Expenses of Plan. The Company shall bear the expenses of administering
the Plan.
12. Duration of Plan. Awards may be granted under this Plan only during the
10 years immediately following the original effective date of this Plan.
13. Applicable Law. The validity, interpretation, and enforcement of this
Plan are governed in all respects by the laws of the State of Florida without
application to the principles of conflicts of laws.
14. Effective Date. The effective date of this Plan shall be the date on
which the Board adopts the Plan.
<PAGE>
15. Not a Contract of Employment. Nothing contained in the Plan or in any
agreement executed pursuant hereto shall be deemed to confer upon a recipient
any right to remain in the employ of the Company and/or its affiliates or in any
way limit the right of the Company and/or its affiliates to terminate the
employment of a recipient, or to terminate any other relationship with a
recipient, including that of independent contractor or consultant.
16. Other Compensation Plans. The adoption of this Plan shall not affect
any other stock option plan, incentive plan or any other compensation plan in
effect for the Company, nor shall this Plan preclude the Company from
establishing any other form of stock option plan, incentive plan or any other
compensation plan.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8, regarding
the registration of up to 10,000 shares of Class A Common Stock, of our report
dated November 25, 1998 included in Weitzer Homebuilders Incorporated`s Form 10-
K for the year ended September 30, 1998 and to all references to our Firm
included in this registration statement. It should be noted that we have not
audited any financial statements of the Company subsequent to September 30, 1998
or performed any audit procedures subsequent to the date of our report.
McKEAN, PAUL, CHRYCY, FLETCHER & CO.
/s/McKEAN, PAUL, CHRYCY, FLETCHER & CO.
Miami, Florida
November 30, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 12, 1997 relating to the
financial statements and financial statements schedules of Weitzer Homebuilders
Incorporated, which appears in Weitzer Homebuilders Incorporated's Annual Report
on Form 10-K for the year ended September 30, 1998.
PricewaterhouseCoopers LLP
/s/ PricewaterhouseCoopers LLP
Miami, Florida
December 13, 1999
