On March 29, 2024, in connection with the expiration of its universal shelf registration statement on Form S-3 (File No. 333-255020) that was filed with the Securities and Exchange Commission (the “SEC”) on April 2, 2021 (the “2021 Registration Statement”), Sun Communities, Inc. (the “Company”) filed a new universal shelf registration statement on Form S-3 (File No. 333-278371) (the “2024 Registration Statement”), which became immediately effective upon filing. In connection with the filing of the 2024 Registration Statement, on May 3, 2024, the Company filed with the SEC a prospectus supplement relating to the Company’s “at the market offering” program (the “ATM Program”), which was previously registered under the 2021 Registration Statement. The prospectus supplement covers the offering of shares of the Company’s common stock that remain unsold under the ATM Program pursuant to the Company’s continuous equity distribution program.
Sales of the shares of common stock under the ATM Program, if any, will be made by means of transactions that are deemed to be an “at the market offering” as defined in Rule 415 under the Securities Act of 1933, as amended, on or through the facilities of the New York Stock Exchange or any other existing trading market, or to or through a market maker or through an electronic communications network, or in any other manner permitted by law (including, without limitation, privately negotiated transactions) at prices prevailing at the time of sale or negotiated transactions, or as otherwise agreed with the sales agents for the ATM Program. The shares that may be sold under the ATM Program have an aggregate offering price of up to $1,250,000,000. Prior to the date of the prospectus supplement, the Company had already sold shares of common stock having an aggregate offering price of $160,541,739 under the ATM Program, resulting in shares of common stock having an aggregate offering price of up to $1,089,458,261 remaining available for sale thereunder. The prospectus supplement continues the ATM Program previously covered by a prospectus supplement that was filed by the Company with the SEC on December 17, 2021, under the 2021 Registration Statement.
The Company previously entered into an At the Market Offering Sales Agreement dated December 17, 2021, as amended (the “Sales Agreement”), with BMO Capital Markets Corp., BofA Securities, Inc., Citigroup Global Markets Inc., J.P. Morgan Securities LLC, RBC Capital Markets, LLC, Regions Securities LLC (“Regions Securities”), Fifth Third Securities, Inc., BTIG, LLC (“BTIG”), Jefferies LLC (“Jefferies”), Samuel A. Ramirez & Company, Inc. and Robert W. Baird & Co. Incorporated (“Baird”) (collectively, the “Sales Agents”) and each of Bank of Montreal, Citibank, N.A., JPMorgan Chase Bank, National Association and Royal Bank of Canada (collectively, the “Forward Purchasers”), in connection with the ATM Program.
On May 3, 2024, the Company amended the Sales Agreement to, among other things: (i) reflect that the shares of common stock issued under the ATM Program will be issued pursuant to the 2024 Registration Statement and the new prospectus supplement, rather than the 2021 Registration Statement and the Company’s prior prospectus supplement filed in connection with the ATM Program; (ii) add each of Citizens JMP Securities, LLC (“Citizens JMP”), Wells Fargo Securities, LLC, Truist Securities, Inc., Scotia Capital (USA) Inc., Goldman Sachs & Co. LLC (“GS”), SMBC Nikko Securities America, Inc., Wedbush Securities Inc., and, solely in its capacity as forward seller, Nomura Securities International, Inc. (acting through BTIG as agent) as a sales agent under the ATM Program; and (iii) add each of Citizens JMP, Wells Fargo Bank, National Association, Baird, Regions Securities, Truist Bank, Nomura Global Financial Products, Inc., The Bank of Nova Scotia, GS and Jefferies as a forward purchaser under the ATM Program.
The foregoing description of the amendment to the Sales Agreement is not complete and is qualified in its entirety by reference to the full text of the amendment, which is filed as Exhibit 1.1 to this Current Report on Form 8-K and incorporated herein by reference.
Attached as Exhibit 5.1 to this Current Report on Form 8-K is a copy of the opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, a Professional Corporation, regarding certain Maryland law matters, including the validity of the shares of common stock offered pursuant to the ATM Program under the new prospectus supplement.
