As filed with the Securities and Exchange Commission on June 6, 2005
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AVATAR HOLDINGS INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 23-1739078
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
201 ALHAMBRA CIRCLE
CORAL GABLES, FLORIDA 33134
(305) 442-7000
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
AVATAR HOLDINGS INC.
AMENDED AND RESTATED 1997 INCENTIVE AND CAPITAL
ACCUMULATION PLAN (2005 RESTATEMENT)
(Full Title of Plans)
JUANITA I. KERRIGAN
VICE PRESIDENT AND SECRETARY
AVATAR HOLDINGS INC.
201 ALHAMBRA CIRCLE
CORAL GABLES, FLORIDA 33134
(305) 442-7000
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
ROBERT TODD LANG, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE, NEW YORK, NEW YORK 10153
(212) 310-8000
CALCULATION OF REGISTRATION FEE
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Proposed Proposed Amount of
Amount to be Maximum Offering Maximum Aggregate Registration
Title of Each Class of Securities to be Registered Registered(1) Price Per Share(2) Offering Price(2) Fee
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Common Stock, par value $1.00 per share 400,000 shares $47.87 $19,148,000 $2,253.72
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(1) This registration statement (the "Registration Statement") registers
the issuance of an additional 400,000 shares of common stock (the
"Common Stock") of Avatar Holdings Inc. (the "Registrant"), par value
$1.00 per share, which are issuable under the 2005 Restatement of the
Avatar Holdings Inc. Amended and Restated 1997 Incentive and Capital
Accumulation Plan (the "Plan"). Pursuant to Rule 416 under the
Securities Act of 1933, as amended (the "Securities Act"), there
shall also be deemed registered hereby such indeterminate number of
shares of Common Stock of the Registrant as may be issued to prevent
dilution resulting from stock dividends, stock splits or similar
transactions.
(2) Estimated pursuant to Rule 457(h) and Rule 457(c) under the
Securities Act, based upon the average of the high and low sales
prices of the Registrant's Common Stock on The Nasdaq Stock Market on
June 3, 2005.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information required by Part I of Form
S-8 will be sent or given to plan participants as specified by Rule 428(b)(1) of
the Securities Act of 1993, as amended, (the "Securities Act"). Such documents
are not required to be and are not filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424. These documents
and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
EXPLANATORY NOTE.
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Pursuant to General Instruction E of Form S-8, this Registration
Statement on Form S-8 registers an additional 400,000 shares of the Registrant's
Common Stock, which are securities of the same class of securities as those
shares registered on the Registrant's registration statement on Form S-8
previously filed with the Commission on June 19, 2001 (Registration No.
333-63278), the contents of which are hereby incorporated by reference.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by the Registrant
(File No. 0-7616) are incorporated herein by reference:
(i) the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2004;
(ii) the amendment to the Registrant's Annual Report for the fiscal
year ended December 31, 2004 filed on Form 10-K/A with the Commission on June 3,
2005;
(iii) the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2005; and
(iv) the description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed with the Commission,
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on October 15, 1980, including any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents. Unless expressly incorporated into this
Registration Statement, a report (or portion thereof) furnished on Form 8-K
shall not be incorporated by reference into this Registration Statement. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supercedes such
statement. Any statement so modified or superseded shall not be deemed, except
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as so modified or superseded, to constitute a part of this Registration
Statement. Copies of these documents are not required to be filed with this
Registration Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain members of Weil, Gotshal & Manges LLP, counsel to the
Registrant, own approximately 12,737 shares of the Registrant's Common Stock.
ITEM 8. EXHIBITS.
4.1 - Certificate of Incorporation, as amended and restated May
28, 1998 (incorporated by reference to Exhibit 3(a) to the
Registrant's Form 10-Q for the quarter ended June 30,
1998, (File No. 0-7616)).
4.2 - Certificate of Amendment of Restated Certificate of
Incorporation, dated May 26, 2000 (incorporated by
reference to Exhibit 3(b), to the Registrant's Form 10-Q
for the quarter ended June 30, 2000 (File No. 0-7616)).
4.3 - Amended and Restated By-laws as of March 5, 2004
(incorporated by reference to Exhibit 3(d) to the
Registrant's Form 10-K for the year ended December 31,
2003 (File No. 0-7616)).
4.4 - Specimen Common Stock Certificate (incorporated by
reference to Exhibit 1(a) to the Registrant's Registration
Statement on Form 8-A, filed with the Commission on
October 15, 1980 (File No. 0-7616)).
5 - Opinion of Weil, Gotshal & Manges LLP (filed herewith).
23.1 - Consent of Ernst & Young LLP (filed herewith).
23.2 - Consent of Ernst & Young LLP (filed herewith).
23.3 - Consent of Weil, Gotshal & Manges LLP (included in its
opinion which appears as Exhibit 5 to this Registration
Statement).
24 - Power of Attorney (included as part of the signature page
to this Registration Statement and incorporated herein by
reference).
99.1 - Avatar Holdings Inc. 1997 Incentive and Capital
Accumulation Plan (incorporated by reference to Exhibit
10(k) to the Registrant's Form 10-K for the fiscal year
ended December 31, 1997 (File No. 0-7616)).
99.2 - Avatar Holdings Inc. Amended and Restated 1997 Incentive
and Capital Accumulation Plan (incorporated by reference
to Exhibit 10(a) to the Registrant's Form 10-Q for the
quarter ended June 30, 1999) (File No. 0-7616)).
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99.3 - Amendment to the Avatar Holdings Inc. Amended and Restated
1997 Incentive and Capital Accumulation Plan (incorporated
by reference to Exhibit 99.3 to the Registrant's Form S-8
filed with the Commission on June 19, 2001) (Registration
No. 333-63278)).
99.4 - Avatar Holdings Inc. Amended and Restated 1997 Incentive
and Capital Accumulation Plan (2005 Restatement)
(incorporated by reference to Exhibit 10.1 to the
Registrant's Form 8-K filed with the Commission on May 31,
2005 (File No. 0-7616)).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective
amendment to this Registration Statement:
(i) to include any prospectus required
by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any
facts or events arising after the
effective date of this Registration
Statement (or the most recent
post-effective amendment thereof)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth
in this Registration Statement.
Notwithstanding the foregoing, any
increase or decrease in the volume
of securities offered (if the total
dollar value of securities offered
would not exceed that which was
registered) and any deviation from
the low or high and the estimated
maximum offering range may be
reflected in the form of prospectus
filed with the Securities and
Exchange Commission pursuant to Rule
424(b) if, in the aggregate, the
changes in volume and price
represent no more than a 20 percent
change in the maximum aggregate
offering price set forth in the
"Calculation of Registration Fee"
table in the effective Registration
Statement; and
(iii) to include any material information
with respect to the plan of
distribution not previously
disclosed in the Registration
Statement or any material change to
such information in the Registration
Statement;
provided, however, that the undertakings set forth in
paragraphs (a)(1)(i) and (a)(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 with 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 therein, and the offering of
such securities at that time shall be deemed to
be the initial bona fide offering thereof.
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(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 this 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 Securities and
Exchange 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 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 Securities Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Coral Gables, State of Florida, on this 6th day of
June, 2005.
AVATAR HOLDINGS INC.
By: /s/ Gerald D. Kelfer
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Name: Gerald D. Kelfer
Title: President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Gerald D. Kelfer, Juanita I.
Kerrigan and Charles L. McNairy, or any of them, each acting alone, his true and
lawful attorney-in-fact and agent, with full powers of substitution and
resubstitution, for such person and in his name, place and stead, in any and all
capacities, in connection with the Registrant's Registration Statement on Form
S-8 under the Securities Act of 1933, including to sign the Registration
Statement and any and all amendments to this Registration Statement, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and any applicable
securities exchange or securities self-regulatory body, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully, to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/s/ Gerald D. Kelfer President, Chief Executive June 6, 2005
------------------------------- Officer and Director (Principal
Gerald D. Kelfer Executive Officer)
/s/ Charles L. McNairy Executive Vice President, Treasurer June 6, 2005
------------------------------- and Chief Financial Officer
Charles L. McNairy (Principal Financial Officer)
/s/ Michael P. Rama Controller (Principal Accounting June 6, 2005
------------------------------- Officer)
Michael P. Rama
/s/ Eduardo A. Brea Director June 6, 2005
-------------------------------
Eduardo A. Brea
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Signature Title Date
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/s/ Milton H. Dresner Director June 6, 2005
-------------------------------
Milton H. Dresner
/s/ Martin Meyerson Director June 6, 2005
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Martin Meyerson
/s/ Jack Nash Director June 6, 2005
-------------------------------
Jack Nash
/s/ Joshua Nash Director; Chairman of the Board June 6, 2005
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Joshua Nash
/s/ Kenneth T. Rosen Director June 6, 2005
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Kenneth T. Rosen
/s/ Joel M. Simon Director June 6, 2005
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Joel M. Simon
/s/ Fred Stanton Smith Director June 6, 2005
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Fred Stanton Smith
/s/ William G. Spears Director June 6, 2005
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William G. Spears
/s/ Beth A. Stewart Director June 6, 2005
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Beth A. Stewart
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 - Certificate of Incorporation, as amended and restated May
28, 1998 (incorporated by reference to Exhibit 3(a) to the
Registrant's Form 10-Q for the quarter ended June 30,
1998, (File No. 0-7616)).
4.2 - Certificate of Amendment of Restated Certificate of
Incorporation, dated May 26, 2000 (incorporated by
reference to Exhibit 3(b), to the Registrant's Form 10-Q
for the quarter ended June 30, 2000 (File No. 0-7616)).
4.3 - Amended and Restated By-laws as of March 5, 2004
(incorporated by reference to Exhibit 3(d) to the
Registrant's Form 10-K for the year ended December 31,
2003 (File No. 0-7616)).
4.4 - Specimen Common Stock Certificate (incorporated by
reference to Exhibit 1(a) to the Registrant's Registration
Statement on Form 8-A, filed with the Commission on
October 15, 1980 (File No. 0-7616)).
5 - Opinion of Weil, Gotshal & Manges LLP (filed herewith).
23.1 - Consent of Ernst & Young LLP (filed herewith).
23.2 - Consent of Ernst & Young LLP (filed herewith).
23.3 - Consent of Weil, Gotshal & Manges LLP (included in its
opinion which appears as Exhibit 5 to this Registration
Statement).
24 - Power of Attorney (included as part of the signature page
to this Registration Statement and incorporated herein by
reference).
99.1 - Avatar Holdings Inc. 1997 Incentive and Capital
Accumulation Plan (incorporated by reference to Exhibit
10(k) to the Registrant's Form 10-K for the fiscal year
ended December 31, 1997 (File No. 0-7616)).
99.2 - Avatar Holdings Inc. Amended and Restated 1997 Incentive
and Capital Accumulation Plan (incorporated by reference
to Exhibit 10(a) to the Registrant's Form 10-Q for the
quarter ended June 30, 1999) (File No. 0-7616)).
99.3 - Amendment to the Avatar Holdings Inc. Amended and Restated
1997 Incentive and Capital Accumulation Plan (incorporated
by reference to Exhibit 99.3 to the Registrant's Form S-8
filed with the Commission on June 19, 2001) (Registration
No. 333-63278).
99.4 - Avatar Holdings Inc. Amended and Restated 1997 Incentive
and Capital Accumulation Plan (2005 Restatement)
(incorporated by reference to Exhibit 10.1 to the
Registrant's Form 8-K filed with the Commission on May 31,
2005 (File No. 0-7616)).