As filed with the Securities and Exchange Commission on July 26, 2002.
Registration No. 333-96769
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT No. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
SUN COMMUNITIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS GOVERNING INSTRUMENT)
MARYLAND 38-2730780
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
---------------
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:
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
===============================================================================
Amount Propose Maximum Proposed Maximum
to be Offering Price Aggregate Offering Amount of
Title of Each Class of Securities Registered Per Unit (1) Price (1) Registration Fee
--------------------------------- ---------- ------------ --------- ----------------
Common Stock, $.01 par value (2) 66,051 Shares $39.44 $2,605,051 $243.00
(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 July 15, 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.
----------------------------------
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 JULY 26, 2002
PROSPECTUS
66,051 SHARES
SUN COMMUNITIES, INC.
COMMON STOCK
This prospectus covers the sale of up to 66,051 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 July 15, 2002, was $39.53 per share.
SEE "RISK FACTORS" ON PAGE 4 FOR CERTAIN FACTORS RELATING TO AN INVESTMENT IN
THE SHARES.
----------------------------------
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.
----------------------------------
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 July ____ , 2002
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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 July 25, 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,
2001, filed with the Commission on March 29, 2002;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
2002, filed on May 14, 2002;
(c) The description of our common stock contained in our Registration Statement
on Form 8-A dated November 23, 1993; and
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(d) 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 are a self-administered and self-managed real estate investment
trust, or REIT. 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 March 31, 2002, we owned, managed, and/or financed
a portfolio of 117 communities (the "Properties") located in 16 states
containing an aggregate of approximately 41,228 developed sites and
approximately 4,375 sites suitable for development.
Structured as an umbrella partnership REIT, or UPREIT, Sun Communities
Operating Limited Partnership, a Michigan limited partnership (the "Operating
Partnership"), is the entity through which we conduct substantially all of our
operations, and which owns, either directly or indirectly through subsidiaries,
all of our assets (the subsidiaries, collectively with the Operating
Partnership, the "Subsidiaries"). We are the sole general partner of, and, as of
March 31, 2002, held approximately 87% of the interests (not including preferred
limited partnership interests) in the Operating Partnership. 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. 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
Our prospects are subject to certain uncertainties and risks. Our
future results could differ materially from current results, and our actual
results could differ materially from those projected in forward-looking
statements as a result of certain risk factors. These risk factors include, but
are not limited to, those set forth below, other one-time events, and important
factors disclosed previously and from time to time in other Company filings with
the Securities and Exchange Commission. This prospectus contains certain
forward-looking statements.
Adverse Consequences of Being a Borrower.
As of March 31, 2002, we had outstanding $83.9 million of indebtedness
that is collateralized by mortgage liens on eighteen of the Properties (the
"Mortgage Debt"). In addition, as of March 31, 2002, we had entered into three
capitalized lease obligations for an aggregate of $25.8 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 may be insufficient to meet required payments of principal
and interest;
- existing indebtedness may not be able to be refinanced;
- the terms of such refinancing may not be as favorable as the terms of such
existing indebtedness; and
- necessary capital expenditures for such purposes as renovations and other
improvements may not be able to be financed on favorable terms or at all.
If any of the above risks occurred, our ability to make expected distributions
could be adversely impacted.
Real Estate Investment Considerations.
Failure to Generate Sufficient Revenue. The market and economic
conditions in our current markets generally, and specifically in metropolitan
areas of our current markets, may significantly affect manufactured home
occupancy or rental rates. Occupancy and rental rates, in turn, may
significantly affect our revenues, and if our communities do not generate
revenues sufficient to meet our operating expenses, including debt service and
capital expenditures, our cash flow and ability to pay distributions to our
stockholders will be adversely affected. The following factors, among others,
may adversely affect the revenues generated by our communities:
- the national and local economic climate which may be adversely impacted by,
among other factors, plant closings and industry slowdowns
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- local real estate market conditions such as the oversupply of manufactured
housing sites or a reduction in demand for manufactured housing sites in an
area;
- the rental market which may limit the extent to which rents may be increased
to meet increased expenses without decreasing occupancy rates;
- the perceptions by prospective tenants of the safety, convenience and
attractiveness of the Properties and the neighborhoods where they are
located;
- zoning or other regulatory restrictions;
- competition from other available manufactured housing sites and alternative
forms of housing (such as apartment buildings and site-built single-family
homes);
- our ability to provide adequate management, maintenance and insurance;
- increased operating costs, including insurance premiums, real estate taxes
and utilities; or
- the enactment of rent control laws. See "Risk Factors - Real Estate
Investment Considerations -- Rent Control Legislation."
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, Installment and Other Loans. As of March
31, 2002, we had an investment of approximately $57.3 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 unsecured loans
subordinate to the primary lender. Also, as of March 31, 2002, we had
outstanding approximately $12.7 million in installment loans to owners of
manufactured homes. These installment loans are collateralized by the
manufactured homes. We may invest in additional mortgages and installment
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loans in the future. Also, as of March 31, 2002, we had an equity investment of
approximately $15.0 million in Origen (defined below) and advances to Origen
under a line of credit of $1.6 million; see "Risk Factors --Relationship with
Origen" below. 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 construction and
development of new communities, and intend to continue in the development and
construction business in the future. Our development and construction business
may be exposed to the following risks which are in addition to those risks
associated with the ownership and operation of established manufactured housing
communities.
- We may not be able to obtain financing with favorable terms for community
development which may make us unable to proceed with the development;
- We may be unable to obtain, or face delays in obtaining, necessary zoning,
building and other governmental permits and authorizations, which could
result in increased costs and delays, and even require us to abandon
development of the community entirely if we are unable to obtain such
permits or authorizations;
- We may abandon development opportunities that we have already begun to
explore and as a result we may not recover expenses already incurred in
connection exploring such development opportunities;
- We may be unable to complete construction and lease-up of a community on
schedule resulting in increased debt service expense and construction costs;
- We may incur construction and development costs for a community which exceed
our original estimates due to increased materials, labor or other costs,
which could make completion of the community uneconomical and we may not be
able to increase rents to compensate for the increase in development costs
which may impact our profitability;
- We may be unable to secure long-term financing on completion of development
resulting in increased debt service and lower profitability; and
- Occupancy rates and rents at a newly developed community may fluctuate
depending on several factors, including market and economic conditions,
which may result in the community not being profitable.
If any of the above occurred, our ability to make expected distributions to
stockholders could be adversely affected.
Results of Acquisitions. We acquire and intend to continue to acquire
manufactured housing communities on a select basis. The success and
profitability of our acquisition activities are subject to the risks of the
acquired community failing to perform as expected based on our analyses of our
investment in the community, and our underestimation of the costs of
repositioning, redeveloping or expanding the acquired community.
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Geographic Concentration. Significant amounts of rental income for the
quarter ended March 31, 2002 were derived from Properties located in Michigan
and Florida. Of our 117 Properties 43, or 37%, are located in Michigan, and 21,
or 18%, are located in Florida. As a result of the geographic concentration of
our Properties in these states, we are exposed to the risks of downturns in the
local economy or other local real estate market conditions which could adversely
affect occupancy rates, rental rates and property values of Properties in these
markets. A negative impact on our occupancy rates, rental rates or property
values would adversely affect the income we receive from the Properties and may
result in our being unable to make expected distributions to stockholders.
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
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Company's ability to make distributions to our stockholders. In the year 2000,
our former insurance carrier filed bankruptcy, and as a result some or all of
the outstanding and incurred, but not yet reported, claims against our policy
may not be covered which would require the Company to cover the loss directly.
The Company expects the maximum exposure not to exceed $250,000 for which no
reserve has been provided in the financial statements.
Conditions Affecting Manufactured Housing Sales
SHS is in the manufactured home sales market offering manufactured home
sales services to tenants and prospective tenants of our communities. The market
for the sale of manufactured homes may be adversely affected by the following
factors:
- Downturns in economic conditions which adversely impact the housing market;
- An oversupply of, or a reduced demand for, manufactured homes;
- The difficulty facing potential purchasers in obtaining affordable financing
as a result of heightened lending criteria; and
- An increase in the rate of manufactured home repossessions which provide
aggressively priced competition to new manufactured home sales.
Any of the above listed factors could adversely impact SHS' rate of manufactured
home sales, which would result in a decrease in SHS' profitability, and which
may also affect the Company's profitability.
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 merged with Origen Financial, Inc., a subsidiary of Bingham, as part of a
recapitalization of Bingham. As a result of this equity investment, we own
approximately a 30% interest in the surviving company ("Origen"), which company
holds 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 and the Company (together
with the other investors in Origen) has the right to purchase its pro rata share
of Bingham's interest in Origen at fair value at any time between the third and
fifth anniversaries of the closing date of the Company's investment in Origen.
In addition, concurrently with our investment in Origen, Mr. Shiffman and
members of his family purchased approximately a 10% equity interest in Origen
for approximately $5.0 million. 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. See "Risk Factors --Conflicts
of Interest."
Currently, we (together with another unaffiliated lender) provide
financing to Origen. This financing consists of a $23.125 million standby line
of credit, bearing interest at a per annum rate
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equal to 700 basis points over LIBOR, with a minimum interest rate of 11% and a
maximum interest rate of 15%. This line of credit is collateralized 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.
Under the terms of a participation agreement we entered into with the
other lender, we are obligated to loan up to $12.5 million to Origen under the
line of credit, the other lender is required to loan up to $10.625 million to
Origen under the line of credit and we jointly administer the line of credit.
Under the participation agreement, each lender participates pari passu in all
proceeds from the line of credit, provided that, if additional funds in excess
of $21.25 million are loaned to Origen and both lenders do not participate
therein, such 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 shared $21.25 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.
Conflicts of Interest.
Ownership of SHS. Gary A. Shiffman, our President, Chief Executive
Officer and Chairman of the Board of Directors 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 SHS, and as such are entitled to 5% of the cash
flow from the operating activities of SHS (the Operating Partnership is the
owner of 100% of the non-voting preferred stock which entitles it to 95% of such
cash flow). Arthur A. Weiss, one of our directors, is also a personal
representative of the Estate.
For certain tax reasons, we made our equity investment in Origen
through SUI TRS, Inc., a taxable REIT subsidiary ("TRS"), which is wholly owned
by SHS. The Operating Partnership contributed $15.0 million to SHS in connection
with the Origen investment and, as the holder of all of the non-voting preferred
stock of SHS, we are entitled 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. As part of the $5.0 million
investment in Origen by Mr. Shiffman and members of his family, Mr. Shiffman and
the Estate contributed approximately $790,000 to SHS as part of the investment
in Origen by TRS, and, as the holders of all of the voting common stock of SHS,
they are entitled 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% indirect interest in Origen. The balance of the Shiffman family's $5.0
million investment in Origen was made through a separate family owned entity
which holds 8.4% of the Shiffman family's aggregate 10% interest. See "Risk
Factors --Relationship with Origen."
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Thus, in all transactions involving SHS, Mr. Shiffman and Mr. Weiss
will have a conflict of interest with respect to their respective obligations as
an officer and/or director of the Company and Mr. Shiffman's right and the
Estate's right to receive a portion of the cash flow from the operating
activities of SHS. The following are the current transactions and agreements
involving SHS which present a conflict of interest for Mr. Shiffman:
- The agreement between SHS and the Operating Partnership for sales,
brokerage, and leasing services;
- The investment in Origen by SUI TRS, Inc., a wholly owned subsidiary of SHS;
and
- The ownership and operation of SHS's other subsidiaries, including Sun Water
Oak Golf, Inc.
The failure to negotiate these and other transactions or agreements involving
SHS on an arm's length basis, or to enforce the material terms of any agreement
or arrangement between SHS and the Company or any other Subsidiary could have an
adverse effect on the Company.
Tax Consequences Upon Sale of Properties. Gary A. Shiffman holds
limited partnership interests in the Operating Partnership ("Common OP Units")
which were received in connection with the contribution 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.
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.
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 SHS, generally will
be subject to Federal income tax at regular corporate rates.
10
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 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.
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 Gary 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 our stockholders (other than a stockholder attempting to acquire a 15%
or greater interest in the Company) with the right to purchase stock in the
Company at a discount in the event any person attempts to acquire a
11
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.
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, 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 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 A. Shiffman, Jeffrey P. Jorissen and Brian W. 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
Company operations. We do not currently maintain or contemplate obtaining any
"key-man" life insurance on the Senior Officers.
In addition, upon the death or disability of Mr. Shiffman, we could
lose the right to appoint a Manager of Origen or otherwise vote our interests in
Origen, which could adversely affect our investment in Origen. See "Risk
Factors--Relationship with Origen" above.
Adverse Consequences of Failure to Qualify as a Partnership
We believe that the Operating Partnership and other various 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 March 31, 2002, up to 3,914,877 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 $1,200,000. In addition, as of March 31, 2002, 2,025,389 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 625,549 shares have been exercised, and 289,922 shares of restricted
stock have been issued as of March 31, 2002. Mr. Shiffman's employment agreement
provides for incentive compensation payable in shares of Common Stock. We also
issued 167,918 shares of Common Stock on January
12
31, 2002 pursuant to our Long Term Incentive Plan 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 the 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 our Common Stock.
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13
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. With
the exception of Mr. Weiss who is one of our directors, 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)
------------------- ------------ ------------- ------ ----------
Julius J. Shepard
Revocable Trust DTD
5/24/1991 61,080 31,080 30,000 *
Susan K. Smith 43,222 8,221 35,001 *
Terran Shiffman Leemis 38,125 25,000 13,125 *
Terran Shiffman Leemis
as Custodian for Rachel
Leemis Under UGMA 875 875 0 *
Terran Shiffman Leemis
as Custodian for Jennifer
Leemis Under UGMA 875 875 0 *
TOTAL 144,177 66,051 78,126 *
(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 17,978,161 shares of Common Stock outstanding as of
June 30, 2002.
* Less than one percent (1%).
14
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 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.
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.
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.
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.
15
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 June 14, 2002 certain shareholders of
Jaffe, Raitt, Heuer & Weiss, P.C. beneficially owned approximately 60,300 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, 2001
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.
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16
================================================================================
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 15
PLAN OF DISTRIBUTION 15
LEGAL MATTERS 16
EXPERTS 16
================================================================================
66,051 SHARES
SUN COMMUNITIES, INC.
COMMON STOCK
______________
PROSPECTUS
______________
JULY _____, 2002
================================================================================
17
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.............................................................................. $ 243
Legal Fees and Expenses ...................................................................... 5,000
Accounting Fees and Expenses ................................................................. 3,000
Miscellaneous ................................................................................ 1,757
-------
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.
II-1
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.
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
II-2
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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II-3
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 July 26,
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, and July 26, 2002
--------------------------------- Chairman of the Board of Directors
Gary A. Shiffman
/s/ Jeffrey P. Jorissen Senior Vice President, Treasurer, Chief July 26, 2002
--------------------------------- Financial Officer, and Secretary
Jeffrey P. Jorissen (principal accounting and financial
officer)
* Director July 26, 2002
---------------------------------
Paul D. Lapides
* Director July 26, 2002
---------------------------------
Ted J. Simon
II-4
NAME TITLE DATE
---- ----- ----
* Director July 26, 2002
---------------------------------
Clunet R. Lewis
* Director July 26, 2002
---------------------------------
Ronald L. Piasecki
* Director July 26, 2002
---------------------------------
Arthur A. Weiss
*By: /s/ Jeffrey P. Jorissen
-------------------------------------
Jeffrey P. Jorissen, Attorney-in-Fact
II-5
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-6