As filed with the Securities and Exchange Commission on March 1, 2002.
No. 333-82392
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Amendment No. 1
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
31700 MIDDLEBELT ROAD
SUITE 145
FARMINGTON HILLS, MICHIGAN 48334
(248) 932-3100
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
---------------
Copies of all correspondence to:
JEFFREY M. WEISS, 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.
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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
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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.
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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.
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If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. .
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities Proposed Maximum Amount of
--------------------------------- Aggregate Offering Price (1) Registration Fee
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Common Stock, $.01 par value (2) $1,938,183 $180.25
(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 February 1, 2002.
(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.
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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.
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETED AND MAY CHANGE.
THE SELLING SHAREHOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT WE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE.
THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING
AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION
PROSPECTUS DATED MARCH 1, 2002
PROSPECTUS
50,212 SHARES
SUN COMMUNITIES, INC.
COMMON STOCK
This prospectus covers the sale of up to 50,212 shares of Sun
Communities, Inc. common stock by certain stockholders. We will not receive any
proceeds from the sale of the shares by the stockholders.
The common stock is listed on the New York Stock Exchange under the
symbol "SUI." The last reported sale price of the common stock as reported on
the New York Stock Exchange on February 1, 2002, was $38.60 per share.
SEE "RISK FACTORS" ON PAGE 4 FOR CERTAIN FACTORS RELATING TO AN
INVESTMENT IN THE SHARES.
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These securities have not been approved or disapproved by the
Securities and Exchange Commission or any state securities
commission nor has the Securities and Exchange Commission
or any state securities commission passed upon the
accuracy or adequacy of this prospectus. Any
representation to the contrary is a
criminal offense.
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The Attorney General of the State of New York has not passed
on or endorsed the merits of this offering. Any
representation to the contrary is unlawful.
The date of this Prospectus is March , 2002
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Sun
Communities, Inc., a Maryland corporation (hereinafter sometimes referred to as
"we", "us", or the "Company"), filed with the Securities and Exchange Commission
(the "SEC") utilizing a "shelf" registration process. Under this shelf process,
the selling stockholders may, from time to time, sell the common stock described
in this prospectus. We may prepare a prospectus supplement at any time to add,
update or change information contained in this prospectus. Except for those
instances in which a specific date is referenced, the information in this
prospectus is accurate as of February 1, 2002. You should read both this
prospectus and any prospectus supplement together with additional information
described under the heading "Where You Can Find More Information".
We believe that we have included or incorporated by reference all
information material to investors in this prospectus, but certain details that
may be important for specific investment purposes have not been included. To see
more detail, you should read the exhibits filed with or incorporated by
reference into the registration statement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports and other information
with the SEC. You may read and copy any document we file at the SEC's public
reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the operation of the SEC's
public reference rooms. Our SEC filings are also available to the public over
the Internet at the SEC's web site at http://www.sec.gov. In addition, our
common stock is listed on the New York Stock Exchange and such reports, proxy
statements and other information concerning the Company can be inspected at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the following documents we filed with the SEC and our
future filings with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934 until we or any underwriters sell all of the
securities:
The following documents and information heretofore filed with the
Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 2000, filed with the Commission on March 30, 2001, as
amended by the Company's Form 10-K/A filed with the Commission on July
2, 2001;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2001, filed on November 14, 2001;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2001, filed on August 14, 2001;
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001, filed on May 14, 2001;
(e) The description of our common stock contained in our Registration
Statement on Form 8-A dated November 23, 1993; and
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(f) The description of rights to purchase our Junior Participating
Preferred Stock contained in our Registration Statement on Form 8-A
dated May 27, 1998.
You may request a copy of these filings at no cost, by writing or calling us at
the following address:
Sun Communities, Inc.
31700 Middlebelt Road
Suite 145
Farmington Hills, MI 48334
Attn: Corporate Secretary
(248) 932-3100
You should rely only on the information incorporated by reference or provided in
this prospectus and any supplement. We have not authorized anyone else to
provide you with different information.
THE COMPANY
As used in this prospectus, "Company," "us," "we," "our" and similar
terms means Sun Communities, Inc., a Maryland corporation, and one or more of
its subsidiaries (including the Operating Partnership (as defined below) and Sun
Home Services, Inc.).
We own and operate manufactured housing communities concentrated in the
midwestern and southeastern United States. We are a fully integrated real estate
company which, together with our affiliates and predecessors, has been in the
business of acquiring, operating, and expanding manufactured housing communities
since 1975. As of September 30, 2001, we owned, managed, and/or financed a
portfolio of 114 communities (the "Properties") located in 15 states containing
an aggregate of approximately 39,300 developed sites and approximately 4,700
sites suitable for development.
We are the sole general partner of, and, as of September 30, 2001, held
approximately 86.8% of the interests (not including preferred limited
partnership interests) in, Sun Communities Operating Limited Partnership, a
Michigan limited partnership (the "Operating Partnership"). Substantially all of
our assets are held by or through the Operating Partnership. The ownership and
management of the Properties is allocated among our subsidiaries. However,
subject to the tax and other risks discussed in the section entitled "Risk
Factors", our stockholders achieve substantially the same economic benefits as
direct ownership, operation, and management of the Properties, except that 5% of
the cash flow from operating activities of Sun Home Services, Inc., a Michigan
corporation ("Home Services"), will be distributed to Gary A. Shiffman (current
Chairman of the Board of the Company) and the Estate of Milton M. Shiffman
(former Chairman of the Board of the Company), as the holders of all the common
stock of Home Services. As sole general partner of the Operating Partnership, we
have the exclusive power to manage and conduct the business of the Operating
Partnership, subject to certain limited exceptions.
Our executive and principal property management office is located at
31700 Middlebelt Road, Suite 145, Farmington Hills, Michigan 48334, and
telephone number is (248) 932-3100. We have regional property management offices
in Elkhart, Indiana and Tampa, Florida.
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RISK FACTORS
Prospective investors should carefully consider, among other factors,
the matters described below.
CONFLICTS OF INTEREST
Failure to Enforce Terms of Home Services Agreement. Gary A. Shiffman,
President, Chief Executive Officer and Chairman of the Board of Directors of the
Company and the Estate of Milton M. Shiffman (former Chairman of the Board of
the Company), are the owners of all of the outstanding common stock of Home
Services, and as such are entitled to 5% of the cash flow from the operating
activities of Home Services (the Operating Partnership is entitled to 95% of
such cash flow). Home Services has entered into an agreement with the Operating
Partnership for sales, brokerage, and leasing services that was not negotiated
on an arm's length basis. Thus, Mr. Shiffman will have a conflict of interest
with respect to his obligations as an officer and director of the Company to
enforce the terms of this services agreement due to his right and the Estate's
right to receive a portion of the cash flow from the operating activities of
Home Services. The failure to enforce the material terms of this agreement could
have an adverse effect on the Company.
Tax Consequences Upon Sale of Properties. Gary A. Shiffman, President,
Chief Executive Officer and Chairman of the Board of Directors of the Company,
holds limited partnership interests in the Operating Partnership ("Common OP
Units") which were received in connection with the sale of 24 Properties the
Company acquired from partnerships previously affiliated with him (the "Sun
Partnerships"). Prior to any redemption of Common OP Units for our common stock
(the "Common Stock"), Mr. Shiffman will have tax consequences different from
those of the Company and its public stockholders on the sale of any of the Sun
Partnerships. Therefore, Mr. Shiffman and the Company, as partners in the
Operating Partnership, may have different objectives regarding the appropriate
pricing and timing of any sale of those Properties.
Relationship with Origen. Certain of our officers and directors have a
relationship with Bingham and Origen (defined below). See "Relationship with
Origen" below for more information.
RELATIONSHIP WITH ORIGEN
In the past, we have provided financing to Bingham Financial Services
Corporation ("Bingham"), a financial services company that provides and services
loans used to finance manufactured homes. In December 2001, we made a $15.0
million equity investment in a newly formed company, Origen Financial, L.L.C.,
that will merge with Origen Financial, Inc., a subsidiary of Bingham, as part of
a recapitalization of Bingham. As a result of this equity investment, we will
own approximately a 30% interest in the surviving company ("Origen"), which
company will hold all of the operating assets of Bingham and its subsidiaries.
As part of the recapitalization, the funds contributed to capitalize Origen were
used to repay approximately $38.9 million of Bingham's outstanding indebtedness
to the Company.
Certain of our officers and directors have an interest in Bingham
and/or Origen. Gary A. Shiffman, our Chairman of the Board, Chief Executive
Officer and President, is a director and officer of Bingham and a manager of
Origen, and Arthur A. Weiss, one of our directors, is a director of Bingham.
Bingham owns approximately a 20% interest in Origen. In addition, concurrently
with our investment in Origen, the Shiffman Family LLC, an entity owned and
controlled by Mr. Shiffman and members of his family, purchased approximately an
8.4% equity interest in Origen for approximately $4.2 million. Finally, for
certain tax and accounting reasons, we made our equity investment in Origen
through a taxable REIT subsidiary ("TRS") which is wholly-owned by Sun Home
Services, Inc. ("SHS"), one of our subsidiaries. The Operating Partnership
contributed $15.0 million to SHS in connection with the Origen investment and
owns all of the non-voting preferred stock of SHS, which entitles us to 95% of
the cash flow from the operating activities of SHS (including the operating
activities of the TRS) and effectively an approximate 30% interest in Origen.
Gary A. Shiffman and the Estate of Milton M. Shiffman (a former officer and
director of the Company) contributed approximately $790,000 to SHS in connection
with the Origen investment and own all of the voting common stock of SHS, which
entitles them to 5% of the cash flow from the operating activities of SHS
(including the operating activities of the TRS) and effectively an approximate
1.6% interest in Origen. Mr. Weiss is a personal representative of the Estate of
Milton M. Shiffman. As a result of the ownership and management of Origen, Mr.
Shiffman and Mr. Weiss may have a conflict of interest with respect to any
transaction between the Company and Origen.
Currently, we (together with another unaffiliated lender) provide
financing to Origen. This financing consists of a $17.5 million standby line of
credit, bearing interest at a per annum rate equal to 700 basis points over
LIBOR, with a minimum interest rate of 11% and a maximum interest rate of 15%.
The line of credit will be reduced to $12.5 million as of the earlier of June
30, 2002 and the closing date of Origen's next securitization of manufactured
home loans. This line of credit is secured by a security interest in Origen's
assets, which is subordinate in all respects to all institutional indebtedness
of Origen, and a guaranty and pledge of assets by Bingham. As of February 28,
2002, approximately $17.0 million was outstanding under the line of credit.
Under the terms of a participation agreement we entered into with the
other lender, we each will loan Origen up to $8.75 million under the line of
credit, we each participate pari passu in all proceeds from the line of credit
and we jointly administer the line of credit. From time to time, as is customary
with lines of credit, the Company may, at its discretion, increase the available
line of credit and lend additional funds to Origen. Under the participation
agreement, if additional funds above the existing line of credit are loaned to
Origen and both lenders do not participate therein, any additional amounts
funded will be subordinate in all respects to all indebtedness of Origen in
which both lenders have participated.
The line of credit subjects the Company to the risks of being a lender.
These risks include the risks relating to borrower delinquency and default and
the adequacy of the collateral for such loans. Because the line of credit is
subordinated to certain senior debt of Origen, in the event Origen was unable to
meet its obligations under the senior debt facility, our right to receive
amounts owed to us under the line of credit would be suspended pending payment
of the amounts owing under the senior debt facility. In addition, because the
security interest securing Origen's obligations under the line of credit is
subordinate to the security interest of certain senior debt of Origen, in the
event of a bankruptcy of Origen, our right to access Origen's assets to satisfy
the amounts outstanding under the line of credit would be subject to the senior
lender's prior rights to the same collateral. Moreover, if we choose to advance
additional funds to Origen beyond the original $17.5 million line of credit and
the other participation lender does not participate in such additional advances,
these secondary advances will be subordinate to any senior debt of Origen and
subordinate to all indebtedness of Origen in which both lenders have
participated.
ADVERSE CONSEQUENCES OF DEBT FINANCING
As of September 30, 2001, we had outstanding $77.7 million of
indebtedness that is collateralized by mortgage liens on 17 of the Properties
(the "Mortgage Debt"). In addition, as of September 30, 2001, we had entered
into three capitalized lease obligations having an aggregate value of $26.2
million. Each capitalized lease obligation involves a lease for a manufactured
housing community providing that we will lease the community for a certain
number of years and then have the option to purchase the community at or prior
to the end of the lease term. In each case, if we fail to exercise our purchase
right, the landlord has the right to require us to buy the property at the same
price for which we had the purchase option. If we fail to meet our obligations
under the Mortgage Debt, the lender would be entitled to foreclose on all or
some of the Properties securing such debt. If we fail to satisfy our lease
obligations or an obligation to purchase the property, the landlord/seller would
be entitled to evict us from the property. In each event, this could have a
material adverse effect on us and our ability to make expected distributions,
and could threaten our continued viability.
We are subject to the risks normally associated with debt financing,
including the following risks:
- our cash flow will be insufficient to meet required payments
of principal and interest;
- existing indebtedness will not be able to be refinanced;
- the terms of such refinancing will not be as favorable as the
terms of such existing indebtedness; and
- necessary capital expenditures for such purposes as
renovations and other improvements will not be able to be
financed on favorable terms or at all.
CHANGES IN INVESTMENT AND FINANCING POLICIES WITHOUT STOCKHOLDER APPROVAL
Our investment and financing policies, and our policies with respect to
certain other activities, including our growth, debt, capitalization,
distributions, real estate investment trust ("REIT") status, and operating
policies, are determined by our Board of Directors. Although the Board of
Directors has no present intention to do so, these policies may be amended or
revised from time to time at the discretion of the Board of Directors without
notice to or a vote of
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our stockholders. Accordingly, stockholders may not have control over changes in
our policies and changes in our policies may not fully serve the interests of
all stockholders.
DEPENDENCE ON KEY PERSONNEL
We are dependent on the efforts of our executive officers, particularly
Gary Shiffman, Jeffrey Jorissen, and Brian Fannon (together, the "Senior
Officers"). While we believe that we could find replacements for these key
personnel, the loss of their services could have a temporary adverse effect on
our operations. We do not currently maintain or contemplate obtaining any
"key-man" life insurance on the Senior Officers.
OWNERSHIP LIMIT AND LIMITS ON CHANGES IN CONTROL
9.8% Ownership Limit. In order to qualify and maintain our
qualification as a REIT, not more than 50% of the outstanding shares of our
capital stock may be owned, directly or indirectly, by five or fewer
individuals. Thus, ownership of more than 9.8% of our outstanding shares of
common stock by any single stockholder has been restricted, with certain
exceptions, for the purpose of maintaining our qualification as a REIT under the
Internal Revenue Code of 1986, as amended (the "Code"). Such restrictions in our
charter do not apply to Mr. Shiffman, the Estate of Milton M. Shiffman and
Robert B. Bayer, a former director and officer of the Company.
The 9.8% ownership limit, as well as our ability to issue additional
shares of Common Stock or shares of other stock (which may have rights and
preferences over the Common Stock), may discourage a change of control of the
Company and may also: (1) deter tender offers for the Common Stock, which offers
may be advantageous to stockholders; and (2) limit the opportunity for
stockholders to receive a premium for their Common Stock that might otherwise
exist if an investor were attempting to assemble a block of Common Stock in
excess of 9.8% of the outstanding shares of the Company or otherwise effect a
change of control of the Company.
Staggered Board. Our Board of Directors has been divided into three
classes of directors. The term of one class will expire each year. Directors for
each class will be chosen for a three-year term upon the expiration of such
class's term, and the directors in the other two classes will continue in
office. The staggered terms for directors may affect the stockholders' ability
to change control of the Company even if a change in control were in the
stockholders' interest.
Preferred Stock. Our charter authorizes the Board of Directors to issue
up to 10,000,000 shares of preferred stock and to establish the preferences and
rights (including the right to vote and the right to convert into shares of
Common Stock) of any shares issued. The power to issue preferred stock could
have the effect of delaying or preventing a change in control of the Company
even if a change in control were in the stockholders' interest.
Rights Plan. We adopted a stockholders rights plan in 1998 that
provides that our stockholders (other than a stockholder attempting to acquire a
15% or greater interest in the Company) will have the right to purchase stock in
the Company at a discount in the event any person attempts to acquire a 15% or
greater interest in the Company. Because this plan could make it more expensive
for a person to acquire a controlling interest in the Company, it could have the
effect of delaying or preventing a change in control of the Company even if a
change in control were in the stockholders' interest.
REAL ESTATE INVESTMENT CONSIDERATIONS
General. Income from real property investments, and our resulting
ability to make expected distributions to stockholders, may be adversely
affected by:
- the general economic climate;
- local conditions such as oversupply of manufactured housing
sites or a reduction in demand for manufactured housing sites
in an area;
- the attractiveness of the Properties to tenants;
- zoning or other regulatory restrictions;
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- competition from other available manufactured housing sites
and alternative forms of housing (such as apartment buildings
and site-built single-family homes); or
- our ability to provide adequate maintenance and insurance, and
increased operating costs (including insurance premiums and
real estate taxes).
Our income would also be adversely affected if tenants were unable to
pay rent or if sites were unable to be rented on favorable terms. If we were
unable to promptly relet or renew the leases for a significant number of the
sites, or if the rental rates upon such renewal or reletting were significantly
lower than expected rates, then our funds from operations and ability to make
expected distributions to stockholders could be adversely affected. In addition,
certain expenditures associated with each equity investment (such as real estate
taxes and maintenance costs) generally are not reduced when circumstances cause
a reduction in income from the investment. Furthermore, real estate investments
are relatively illiquid and, therefore, will tend to limit our ability to vary
our portfolio promptly in response to changes in economic or other conditions.
Competition. All of the Properties are located in developed areas that
include other manufactured housing community properties. The number of
competitive manufactured housing community properties in a particular area could
have a material effect on our ability to lease sites and on rents charged at the
Properties or at any newly acquired properties. We may be competing with others
with greater resources and whose officers and directors have more experience
than our officers and directors. In addition, other forms of multi-family
residential properties, such as private and federally funded or assisted
multi-family housing projects and single-family housing, provide housing
alternatives to potential tenants of manufactured housing communities.
Changes in Laws. Costs resulting from changes in real estate tax laws
generally may be passed through to tenants and will not affect us. Increases in
income, service or other taxes, however, generally are not passed through to
tenants under leases and may adversely affect our funds from operations and our
ability to make distributions to stockholders. Similarly, changes in laws
increasing the potential liability for environmental conditions existing on
properties or increasing the restrictions on discharges or other conditions may
result in significant unanticipated expenditures, which would adversely affect
our funds from operations and our ability to make distributions to stockholders.
Investments in Real Estate and Installment Loans. As of September 30,
2001, we had an investment of approximately $58.3 million in real estate loans
to several entities and Properties, some of which are secured by a first lien on
the underlying property, and others which are secured by a lien on the
underlying real estate subordinate to the lien held by the primary lender. Also,
as of September 30, 2001, we had outstanding approximately $14.1 million in
installment loans to owners of manufactured homes. These installment loans are
collateralized by the manufactured homes. In addition, we may invest in
additional mortgages and installment loans in the future. By virtue of our
investment in the mortgages and the loans, we are subject to the following risks
of such investment:
- the borrowers may not be able to make debt service payments or
pay principal when due;
- the value of property securing the mortgages and loans may be
less than the amounts owed; and
- interest rates payable on the mortgages and loans may be lower
than our cost of funds.
If any of the above occurred, funds from operations and our ability to make
expected distributions to stockholders could be adversely affected.
Development of New Communities. We are engaged in the development of
new communities. The manufactured housing community development business
involves significant risks in addition to those involved in the ownership and
operation of established manufactured housing communities, including the
following risks:
- financing may not be available on favorable terms for
development projects;
- construction and lease-up may not be completed on schedule
resulting in increased debt service expense and construction
costs;
- long-term financing may not be available upon completion of
construction; and
- sites may not be leased on profitable terms.
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If any of the above occurred, our ability to make expected distributions to
stockholders could be adversely affected.
Rent Control Legislation. State and local rent control laws in certain
jurisdictions may limit our ability to increase rents and to recover increases
in operating expenses and the costs of capital improvements. Enactment of such
laws has been considered from time to time in other jurisdictions. Certain
Properties are located, and the Company may purchase additional properties, in
markets that are either subject to rent control or in which rent-limiting
legislation exists or may be enacted.
Environmental Matters. Under various Federal, state and local laws,
ordinances and regulations, an owner of real estate is liable for the costs of
removal or remediation of certain hazardous or toxic substances on or in such
property. Such laws often impose such liability without regard to whether the
owner knew of, or was responsible for, the presence of such hazardous or toxic
substances. The presence of such substances, or the failure to properly
remediate such substances, may adversely affect the owner's ability to sell or
rent such property or to borrow using such property as collateral. Persons who
arrange for the disposal or treatment of hazardous or toxic substances may also
be liable for the costs of removal or remediation of such substances at a
disposal or treatment facility, whether or not such facility is owned or
operated by such person. Certain environmental laws impose liability for release
of asbestos-containing materials ("ACMs") into the air and third parties may
seek recovery from owners or operators of real properties for personal injury
associated with ACMs. In connection with the ownership (direct or indirect),
operation, management, and development of real properties, we may be considered
an owner or operator of such properties or as having arranged for the disposal
or treatment of hazardous or toxic substances and, therefore, are potentially
liable for removal or remediation costs, as well as certain other related costs,
including governmental fines and injuries to persons and property.
All of the Properties have been subject to a Phase I or similar
environmental audit (which involves general inspections without soil sampling or
ground water analysis) completed by independent environmental consultants. These
environmental audits have not revealed any significant environmental liability
that would have a material adverse effect on our business. No assurances can be
given that existing environmental studies of the Properties reveal all
environmental liabilities, that any prior owner of a Property did not create any
material environmental condition not known to us, or that a material
environmental condition does not otherwise exist as to any one or more
Properties.
Uninsured Loss. We maintain comprehensive liability, fire, flood (where
appropriate), extended coverage, and rental loss insurance on the Properties
with policy specifications, limits, and deductibles which are customarily
carried for similar properties. Certain types of losses, however, may be either
uninsurable or not economically insurable, such as losses due to earthquakes,
riots, or acts of war. In the event an uninsured loss occurs, we could lose both
our investment in and anticipated profits and cash flow from the affected
property which would adversely affect the Company's ability to make
distributions to our stockholders.
ADVERSE CONSEQUENCES OF FAILURE TO QUALIFY AS A REIT
Taxation as a Corporation. We expect to qualify and have made an
election to be taxed as a REIT under the Code, commencing with the calendar year
beginning January 1, 1994. Although we believe that we are organized and will
operate in such a manner, no assurance can be given that we are organized or
will be able to operate in a manner so as to qualify or remain so qualified.
Qualification as a REIT involves the satisfaction of numerous requirements (some
on an annual and quarterly basis) established under highly technical and complex
Code provisions for which there are only limited judicial or administrative
interpretations, and involves the determination of various factual matters and
circumstances not entirely within our control.
If we were to fail to qualify as a REIT in any taxable year, we would
be subject to Federal income tax (including any applicable alternative minimum
tax) on our taxable income at corporate rates. Moreover, unless entitled to
relief under certain statutory provisions, we also would be disqualified from
treatment as a REIT for the four taxable years following the year during which
qualification is lost. This treatment would reduce our net earnings available
for investment or distribution to stockholders because of the additional tax
liability to us for the years involved. In addition, distributions to
stockholders would no longer be required to be made.
7
Other Tax Liabilities. Even though we qualify as a REIT, we are subject
to certain Federal, state and local taxes on our income and property. In
addition, our sales operations, which are conducted through Home Services,
generally will be subject to Federal income tax at regular corporate rates.
REIT Modernization Act. In December 1999, the REIT Modernization Act
("RMA") was signed into law. The RMA contains several provisions that will allow
REITs to create a taxable REIT subsidiary ("TRS") that can provide services to
residents and others without disqualifying the rents that a REIT receives from
its residents. Furthermore, for tax years beginning after December 31, 2000 RMA
changes the minimum distribution requirement from 95 percent to 90 percent of
the REIT's taxable income, which will allow REITs to reinvest a larger
percentage of capital into their real estate assets or repay their existing
debt.
ADVERSE EFFECT OF DISTRIBUTION REQUIREMENTS
We may be required from time to time, under certain circumstances, to
accrue as income for tax purposes interest and rent earned, but not yet
received. In such event, we could have taxable income without sufficient cash to
enable us to meet the distribution requirements of a REIT. Accordingly, we could
be required to borrow funds or liquidate investments on adverse terms in order
to meet such distribution requirements.
ADVERSE CONSEQUENCES OF FAILURE TO QUALIFY AS A PARTNERSHIP
We believe that the Operating Partnership and other various Company
subsidiary partnerships have each been organized as partnerships and will
qualify for treatment as such under the Code. If the Operating Partnership and
such other partnerships fail to qualify for such treatment under the Code, we
would cease to qualify as a REIT, and the Operating Partnership and such other
partnerships would be subject to Federal income tax (including any alternative
minimum tax) on their income at corporate rates.
ADVERSE EFFECT ON PRICE OF SHARES AVAILABLE FOR FUTURE SALE
Sales of a substantial number of shares of Common Stock, or the
perception that such sales could occur, could adversely affect prevailing market
prices for shares. As of September 30, 2001, up to 3,978,321 shares of Common
Stock may be issued in the future to the limited partners of the Operating
Partnership (both Common and Preferred OP Units). The limited partners may sell
such shares pursuant to registration rights or an available exemption from
registration. Also, Water Oak, Ltd., a former owner of one of the Properties,
will be issued Common OP Units with a value of approximately $1,000,000 annually
through 2007. In 2008 and 2009, Water Oak, Ltd. will be issued Common OP Units
with a value of approximately $1.2 million. In addition, as of September 30,
2001, 2,015,803 shares have been reserved for issuance pursuant to our 1993
Employee Stock Option Plan and 1993 Non-Employee Director Stock Option Plan (the
"Plans"). Under the Plans options for 601,838 shares have been exercised, and
288,172 shares of restricted stock have been issued as of September 30, 2001.
Mr. Shiffman's employment agreement provides for incentive compensation payable
in shares of Common Stock. We have also reserved 240,000 shares of Common Stock
for issuance commencing January 31, 2002 pursuant to our Long Term Incentive
Plan which is for the benefit of all of our salaried employees other than our
officers. No prediction can be made regarding the effect that future sales of
shares of Common Stock will have on the market price of shares.
ADVERSE EFFECT OF MARKET INTEREST RATES ON PRICE OF COMMON STOCK
One of the factors that may influence the price of the Common Stock in
the public market will be the annual distributions to stockholders relative to
the prevailing market price of the Common Stock. An increase in market interest
rates may tend to make the Common Stock less attractive relative to other
investments, which could adversely affect the market price of Common Stock.
8
SELLING STOCKHOLDERS
The Selling Stockholders may use this prospectus for the resale of
shares of Common Stock being registered by this prospectus, although no Selling
Stockholder is obligated to sell any such shares. Each of the Selling
Stockholders is a holder of Common OP Units and/or shares of Common Stock. We
are the sole general partner of the Operating Partnership. Under the terms of
the Operating Partnership's Second Amended and Restated Limited Partnership
Agreement (the "Partnership Agreement"), the Common OP Units may be exchanged
for shares of Common Stock. As of the date of this prospectus, the exchange
ratio is one share for each Common OP Unit exchanged, but such exchange ratio is
subject to adjustment in certain events pursuant to anti-dilution provisions
contained in the Partnership Agreement. The Common Stock offered by this
prospectus has been or will be issued to the Selling Stockholders in exchange
for Common OP Units held by the Selling Stockholders (the "Shares"). The Selling
Stockholders are not required to exchange Common OP Units to Common Stock. None
of the Selling Stockholders is an affiliate of the Company.
The following table sets forth certain information regarding the
Selling Stockholders and the shares of Common Stock beneficially owned by each
of them:
---------------------------------- ------------------------ --------------------- -----------------------------------
Shares Beneficially
Owned After
Shares of Common Completion of
Stock Beneficially Number of the Offering (2)
Owned Prior to the Shares ----------------
Selling Stockholder Offering (1) Being Offered Number Percent(3)
---------------------------------- ------------------------ --------------------- ------------------ ----------------
Leonard Cooper 1,348 1,348 0 *
---------------------------------- ------------------------ --------------------- ------------------ ----------------
HTR Associates, Inc. 6,738 6,738 0 *
---------------------------------- ------------------------ --------------------- ------------------ ----------------
Jewish Communal Fund 7,500 7,500 0 *
---------------------------------- ------------------------ --------------------- ------------------ ----------------
Nancy Kolender 6,126 6,126 0 *
---------------------------------- ------------------------ --------------------- ------------------ ----------------
Miami Jewish Home & Hospital for 1,500 1,500 0
the Aged *
---------------------------------- ------------------------ --------------------- ------------------ ----------------
Water Oak, Ltd. 27,250 27,000 240 *
---------------------------------- ------------------------ --------------------- ------------------ ----------------
TOTAL 50,462 50,212 240
---------------------------------- ------------------------ --------------------- ------------------ ----------------
(1) The number set forth in this column is the number of shares of Common
Stock held by each such Selling Stockholder and/or the number of shares of
Common Stock that would be received upon an exchange of Common OP Units
held by each such Selling Stockholder.
(2) Assumes that all shares of Common Stock being offered and registered
hereunder are sold, although no Selling Stockholder is obliged to sell any
such shares.
(3) Based upon 17,965,164 shares of Common Stock outstanding as of December
31, 2001.
* Less than one percent (1%).
USE OF PROCEEDS
We will not receive any of the proceeds of any sale by the Selling
Stockholders.
PLAN OF DISTRIBUTION
The Company is registering the Shares on behalf of the Selling
Stockholders. As used herein, "Selling Stockholders" includes pledgees, donees,
transferees or other successors in interest (collectively with the Selling
Stockholders, the "Sellers") selling shares received from a Selling Stockholder
after the date of this prospectus. The Sellers, directly or through brokers,
dealers, underwriters, agents or market makers, may sell some or all of the
Shares. Any broker, dealer, underwriter, agent or market maker participating in
a transaction involving the Shares may receive a commission from the Sellers.
Usual and customary commissions may be paid by the Sellers. The broker, dealer,
underwriter or market maker may agree to sell a specified number of the Shares
at a stipulated price per Share and, to
9
the extent that such person is unable to do so acting as an agent for the
Sellers, to purchase as principal any of the Shares remaining unsold at a price
per Share required to fulfill the person's commitment to the Sellers.
The Sellers and any brokers, dealers, agents or market makers
participating in a distribution of the Shares may be deemed to be "underwriters"
within the meaning of the Securities Act.
A broker, dealer, underwriter or market maker who acquires the Shares
from the Sellers as a principal for its own account may thereafter resell such
Shares from time to time in transactions (which may involve block or cross
transactions and which may also involve sales to or through another broker,
dealer, underwriter, agent or market maker, including transactions of the nature
described above) on the New York Stock Exchange, in negotiated transactions or
otherwise, at market prices prevailing at the time of the sale, or at negotiated
prices. In connection with such resales, the broker, dealer, underwriter, agent
or market maker may pay commissions to, or receive commissions from, the
purchasers of the Shares. The Sellers also may sell some or all of the Shares
directly to purchasers without the assistance of a broker, dealer, underwriter,
agent or market maker and without the payment of any commissions.
Other than any commissions or discounts paid or allowed by the Selling
Stockholders to underwriters, dealers, brokers or agents, all expenses incurred
in connection with this offering are being borne by us.
Pursuant to the registration rights granted to the Selling Stockholders
in connection with the issuance of Common OP Units to the Selling Stockholders,
we have agreed to indemnify the Selling Stockholders and any person who controls
a Selling Stockholder against certain liabilities and expenses arising out of,
or based upon the information set forth in, or incorporated by reference in,
this prospectus, and the registration statement of which this prospectus is a
part, including liabilities under the Securities Act. Any commissions paid or
any discounts or concessions allowed to any broker, dealer, underwriter, agent
or market maker and, if any such broker, dealer, underwriter, agent or market
maker purchases any of the Shares as principal, any profits received on the
resale of such Shares, may be deemed to be underwriting commissions or discounts
under the Securities Act.
LEGAL MATTERS
The legality of the Common Stock offered hereby will be passed upon by
Jaffe, Raitt, Heuer & Weiss, Professional Corporation, Detroit, Michigan. Arthur
A. Weiss, who is a director of the Company, is a shareholder of Jaffe, Raitt,
Heuer & Weiss, P.C. In addition, as of January 31, 2002 certain shareholders of
Jaffe, Raitt, Heuer & Weiss, P.C. beneficially owned approximately 55,799 shares
of our Common Stock.
EXPERTS
The financial statements incorporated in this Registration Statement by
reference to our Annual Report on Form 10-K for the year ended December 31, 2000
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
10
================================================================================
No dealer, salesperson or other individual has been
authorized to give any information or to make any
representations not contained or incorporated by
reference in this prospectus in connection with any
offering to be made by the prospectus. If given or made,
such information or representations must not be relied
upon as having been authorized by the Company. This
prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, the securities, in any
jurisdiction where, or to any person to whom, it is
unlawful to make such offer or solicitation. Neither the
delivery of this prospectus nor any offer or sale made
hereunder shall, under any circumstance, create an
implication that there has been no change in the facts
set forth in this prospectus or in the affairs of the
Company since the date hereof.
TABLE OF CONTENTS
PROSPECTUS
Page
----
ABOUT THIS PROSPECTUS 2
WHERE YOU CAN FIND MORE INFORMATION 2
USE OF PROCEEDS 9
PLAN OF DISTRIBUTION 9
LEGAL MATTERS 10
EXPERTS 10
================================================================================
================================================================================
50,212 SHARES
SUN COMMUNITIES, INC.
COMMON STOCK
--------------
PROSPECTUS
--------------
================================================================================
MARCH ___, 2002
11
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......................................... $ 200
Legal Fees and Expenses.................................. 5,000
Accounting Fees and Expenses............................. 3,000
Miscellaneous............................................ 1,800
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.
II - 1
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.
II - 2
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 Farmington Hills, State of Michigan, on February 28,
2002.
SUN COMMUNITIES, INC.,
a Maryland corporation
By: /s/ Jeffrey P. Jorissen
-------------------------------------------------------
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
---- ----- ----
* Chief Executive Officer, President, February 28, 2002
-------------------------------- and Chairman of the Board of
Gary A. Shiffman Directors
/s/Jeffrey P. Jorissen Senior Vice President, Treasurer,
-------------------------------- Chief Financial Officer, and February 28, 2002
Jeffrey P. Jorissen Secretary (principal accounting and
financial officer)
* Director February 28, 2002
--------------------------------
Paul D. Lapides
* Director February 28, 2002
--------------------------------
Ted J. Simon
* Director February 28, 2002
--------------------------------
Clunet R. Lewis
II - 3
NAME TITLE DATE
---- ----- ----
* Director February 28, 2002
--------------------------------
Ronald L. Piasecki
* Director February 28, 2002
--------------------------------
Arthur A. Weiss
*By: /s/ Jeffrey P. Jorissen
-----------------------------
Jeffrey P. Jorissen,
Attorney-in-fact
II - 4
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
*23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
*23.2 Consent of Jaffe, Raitt, Heuer & Weiss, Professional Corporation
(included in Exhibit 5.1)
*FILED HEREWITH
II - 5