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As filed with the Securities and Exchange Commission on July 8, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
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 (I.R.S. Employer Identification No.)
Incorporation or Organization)
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31700 MIDDLEBELT ROAD, SUITE 145
FARMINGTON HILLS, MICHIGAN 48334
(Address of Principal Executive Offices)
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SECOND AMENDED AND RESTATED 1993 STOCK OPTION PLAN
(Full title of the plan)
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GARY A. SHIFFMAN
CHIEF EXECUTIVE OFFICER
SUN COMMUNITIES, INC.
31700 MIDDLEBELT ROAD, SUITE 145
FARMINGTON HILLS, MICHIGAN 48334
(248) 932-3100
(Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
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Copy to:
JEFFREY M. WEISS, ESQ.
JAFFE, RAITT, HEUER & WEISS, P.C.
ONE WOODWARD AVENUE, SUITE 2400
DETROIT, MICHIGAN 48226
(313) 961-8380
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Per Aggregate Offering Registration
to be Registered Registered ------------------- ------------------- ------------
- ---------------- ---------- Share (1) Price (1) Fee
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Common Stock, par value $.01 per share 2,013,680 $35.625 $71,737,350 $19,943
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 of the Securities Act of 1933, based on the average of
the high and low prices of the Common Stock, par value $.01 per share, of
Sun Communities, Inc., reported on the New York Stock Exchange on July 6,
1999.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in this Item 1 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Securities
and Exchange Commission (the "Commission") and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in this Item 2 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Commission
and the instructions to Form S-8, such documents are not being filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents and information heretofore filed with the
Commission are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998, filed pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999 filed pursuant to the Exchange Act;
(c) The Registrant's Current Report on Form 8-K filed on January
8, 1999 pursuant to the Exchange Act; and
(d) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed
pursuant to the Exchange Act, and all amendments or reports
filed for the purpose of updating such description.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment 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.
Any statement contained in this Registration Statement 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
supersedes such earlier statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of the Registrant's Common Stock to be
issued pursuant to this Registration Statement will be passed upon by Jaffe,
Raitt, Heuer & Weiss, P.C. Arthur A. Weiss, who is a director of the Registrant,
is a shareholder of Jaffe, Raitt, Heuer & Weiss, P.C. In addition, as of July 2,
1999, certain shareholders of Jaffe, Raitt, Heuer & Weiss, P.C. beneficially
owned approximately 68,800 shares of the Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Maryland General Corporation Law (the "MGCL"), the
Registrant's charter authorizes the Registrant 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 Registrant's
bylaws obligate it 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 by Maryland law. The
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 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 Registrant's
charter contains a provision providing for elimination of the liability of its
directors or officers to the Registrant or its stockholders for money damages to
the maximum extent permitted by Maryland law from time to time.
The Registrant has entered into indemnification agreements with each of
its directors and officers that provide the maximum indemnity allowed under
Maryland law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The exhibits filed herewith are set forth on the Exhibit Index filed as
part of this Registration Statement.
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 volume
of securities offered (if the total dollar value securities
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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 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 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.
(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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred 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
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 Farmington Hills, State of Michigan, on July 2, 1999.
SUN COMMUNITIES, INC., a Maryland
corporation
By: /s/ Gary A. Shiffman
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Gary A. Shiffman, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, hereby constitutes and appoints Gary A. Shiffman and Jeffrey P.
Jorissen, or either of them, his attorneys-in-fact and agents, with full power
of substitution and resubstitution for him in any and all capacities, to sign
any or all amendments or post-effective amendments to this Registration
Statement, and to file the same, with exhibits thereto and other documents in
connection therewith or in connection with the registration of the Common Stock
under the Securities Act of 1933, with the Securities and Exchange Commission,
granting unto each of such attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and necessary in
connection with such matters as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of such
attorneys-in-fact and agents or his substitute or substitutes may 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.
NAME TITLE DATE
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/s/ Milton M. Shiffman Chairman of the Board July 2, 1999
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Milton M. Shiffman
Chief Executive Officer, July 2, 1999
/s/ Gary A. Shiffman President (principal executive
- ---------------------------- officer), and Director
Gary A. Shiffman
Chief Financial Officer, Senior Vice July 2, 1999
/s/ Jeffrey P. Jorissen President, Treasurer and Secretary
- ---------------------------- (principal financial and accounting
Jeffrey P. Jorissen officer)
July 2, 1999
/s/ Paul D. Lapides Director
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Paul D. Lapides
/s/ Clunet R. Lewis Director July 2, 1999
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Clunet R. Lewis
/s/ Ronald L. Piasecki Director July 2, 1999
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Ronald L. Piasecki
/s/ Ted J. Simon Director July 2, 1999
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Ted J. Simon
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NAME TITLE DATE
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/s/ Arthur A. Weiss Director July 2, 1999
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Arthur A. Weiss
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Second Amended and Restated 1993 Stock Option Plan
4.2* Form of Stock Option Agreement between the Company and certain
directors, officers and other individuals
5.1 Opinion of Jaffe, Raitt, Heuer & Weiss, P.C. as to legality of
securities being registered
23.1 Consent of Jaffe, Raitt, Heuer & Weiss, P.C. (included as part of
Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers L.L.P., independent accountants
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
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* Incorporated by reference to Exhibit 10.10 of the Registrant's Registration
Statement on Form S-11 (File No. 33-69340).
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