As filed with the Securities and Exchange Commission on May 6, 2003.
Registration No. 333-104737
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SUN COMMUNITIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS GOVERNING INSTRUMENT)
MARYLAND 38-2730780
(State or Other Jurisdiction of Incorporation or (I.R.S. Employer Identification No.)
Organization)
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GARY A. SHIFFMAN
PRESIDENT
27777 FRANKLIN ROAD
SUITE 200
SOUTHFIELD, MICHIGAN 48034
(248) 208-2500
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
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Copies of all correspondence to:
LISE A. BARRERA, ESQ.
JAFFE, RAITT, HEUER & WEISS, P.C.
ONE WOODWARD AVENUE, SUITE 2400
DETROIT, MICHIGAN 48226
(313) 961-8380
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement as
determined by market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. _____
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box. X
-----
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ____
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. ____
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. _____
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
--------------------------------- ------------- ----------------- ----------------- ----------
Registered Offering Price Per Aggregate Offering Registration Fee
----------- ------------------- ------------------- ----------------
Unit(1) Price (1)
------- ---------
Common Stock,
$.01 par value (2) 218,780 $38.52 $8,427,406.00 $682.00
(1) Estimated solely for purposes of determining the registration fee
pursuant to Rule 457(c), based upon the average of the high and
low prices reported on the New York Stock Exchange on April 21,
2003.
(2) Includes rights to purchase Junior Participating Preferred Stock
of the Company (the "Rights"). Since no separate consideration is
paid for the Rights, the registration fee therefor is included in
the fee for the Common Stock.
--------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT
TO SAID SECTION 8(a), MAY DETERMINE.
EXLPLANATORY NOTE
This Amendment No. 2 to Sun Communities, Inc.'s Registration Statement
on Form S-3 is being filed solely for the purpose of modifying Exhibit 8.1, the
opinion of Jaffe, Raitt, Heuer & Weiss, Professional Corporation, regarding Sun
Communities, Inc.'s REIT qualification.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses to be incurred in
connection with the issuance and distribution of the securities being
registered.
Registration Fee............................................... $ 682
Legal Fees and Expenses........................................ 5,000
Accounting Fees and Expenses................................... 3,000
Miscellaneous.................................................. 1,318
Total.......................................................... $ 10,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's charter authorizes the Company to obligate itself to
indemnify its present and former directors and officers and to pay or reimburse
expenses for such individuals in advance of the final disposition of a
proceeding to the maximum extent permitted from time to time by Maryland law.
The Company's bylaws obligate it to indemnify and advance expenses to present
and former directors and officers to the maximum extent permitted by Maryland
law. The Maryland General Corporation Law ("MGCL") permits a corporation to
indemnify its present and former directors and officers, among others, against
judgments, penalties, fines, settlements, and reasonable expenses actually
incurred by them in connection with any proceeding to which they may be made a
party by reason of their service to the Company in those capacities unless it is
established that: (i) the act or omission of the director or officer was
material to the matter giving rise to the proceeding; and (a) was committed in
bad faith or, (b) was the result of active and deliberate dishonesty; (ii) the
director or officer actually received an improper personal benefit in money,
property, or services; or (iii) in the case of any criminal proceeding, the
director or officer had reasonable cause to believe that the act or omission was
unlawful.
The MGCL permits the charter of a Maryland corporation to include a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, except to the extent that:
(i) it is proved that the person actually received an improper benefit or profit
in money, property or services; or (ii) a judgment or other final adjudication
is entered in a proceeding based on a finding that the person's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding. The Company's
charter contains a provision providing for elimination of the liability of its
directors or officers to the Company or its stockholders for money damages to
the maximum extent permitted by Maryland law.
The partnership agreement of the Operating Partnership also provides
for indemnification of the Company and its officers and directors to the same
extent indemnification is provided to officers and directors of the Company in
its charter, and limits the liability of the Company and its officers and
directors to the Operating Partnership and its respective partners to the same
extent the liability of the officers and directors of the Company to the Company
and its stockholders is limited under the Company's charter.
ITEM 16. EXHIBITS
The exhibits to the Registration Statement are listed in the Exhibit
Index which appears elsewhere in this Registration Statement and is hereby
incorporated by reference.
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ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table set forth in
this registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
this registration statement or any material change to
such information in this registration statement;
provided, however, that subparagraphs (i) and (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 by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the Securities offered 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.
The undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the Securities offered herein, and the offering of such Securities
at that time shall be deemed to be the initial bona fide offering thereof; and
insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 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 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 against the Registrant by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on May 5,
2003.
SUN COMMUNITIES, INC.,
a Maryland corporation
By: /s/ Jeffrey P. Jorissen
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Jeffrey P. Jorissen, Chief Financial
Officer, Secretary and Principal Accounting
Officer
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.
NAME TITLE DATE
---- ----- ----
/s/ * Chief Executive Officer, President,
--------------------------- and Chairman of the Board of May 5, 2003
Gary A. Shiffman Directors
/s/ Jeffrey P. Jorissen Executive Vice President, Treasurer,
--------------------------- Chief Financial Officer, and May 5, 2003
Jeffrey P. Jorissen Secretary (principal accounting and
financial officer)
/s/ *
---------------------------
Paul D. Lapides Director May 5, 2003
/s/ *
---------------------------
Ted J. Simon Director May 5, 2003
/s/ *
---------------------------
Clunet R. Lewis Director May 5, 2003
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NAME TITLE DATE
---- ----- ----
/s/ *
---------------------------
Ronald L. Piasecki Director May 5, 2003
/s/ *
---------------------------
Arthur A. Weiss Director May 5, 2003
/s/ Jeffrey P. Jorissen
-----------------------------
* BY: Jeffrey P. Jorissen, Attorney-in-Fact
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Form of Common Stock Certificate (Incorporated by reference from
Exhibit 2 to Amendment No. 1 to Form S-11 filed by the Company on
November 5, 1993, File No. 33-69340)
4.2 Articles VI and VII of the Company's Amended and Restated Articles of
Incorporation (Incorporated by reference from Exhibit 3.1 to Amendment
No. 1 to Form S-11 filed by the Company on November 5, 1993, File
No. 33-69340)
4.3 Rights Agreement, dated as of April 24, 1998, between the Company and
State Street Bank and Trust Company (Incorporated by reference to
Exhibit 99.1 of the Company's Current Report on Form 8-K dated April
24, 1998)
4.4 Articles Supplementary to the Company's Amended and Restated
Articles of Incorporation (Incorporated by reference from
Exhibit 4.1 of the Company's Current Report on Form 8-K
dated September 29, 1999)
#5.1 Opinion of Jaffe, Raitt, Heuer & Weiss, Professional Corporation, as to
legality of securities
*8.1 Opinion of Jaffe, Raitt, Heuer & Weiss, Professional Corporation, as to
REIT qualification
#23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
#23.2 Consent of Jaffe, Raitt, Heuer & Weiss, Professional Corporation
(included in Exhibit 5.1)
#PREVIOUSLY FILED
*FILED HEREWITH